Avoiding Liability Bulletin – 2014
Mrs. Carter, the wife of a Major in the United States Army, was seen at an army community hospital for a single lump on each side of her breasts that the patient had discovered two months earlier. They were palpable and each was about one centimeter in size. A nurse practitioner at the army community hospital ordered a bilateral diagnostic mammography.1
After filling out the require forms for the diagnostic mammography, Mrs. Carter had the diagnostic test and an ultrasound. A radiologist reviewed the results of the diagnostic test and dictated his findings and impressions, although the report was somewhat “ambiguous”.2 A follow-up letter was sent to Mrs. Carter summarizing the radiologist’s findings and, although the lumps appeared to be benign, recommended that she contact her primary care physician for a referral to the hospital’s General Surgery Clinic for a biopsy of the lump in her right breast.
Mrs. Carter never received the follow-up letter. Still monitoring her lumps, particularly in the right breast, she made another appointment where she was seen by a second nurse practitioner who ordered bilateral diagnostic mammograms and an ultrasound. The mammograms were not done for some unknown reason but the ultrasound was done on the left breast. The ultrasound results indicated a benign tumor in the left breast.3
Still concerned about the lump in the right breast, Mrs. Carter returned to the army hospital and after another mammogram, a needle biopsy was recommended. The biopsy indicated an “intermediate grade infiltrating ductal carcinoma”.4
Mrs. Carter’s treating oncologist determined the lump to be clinically sized as Stage 3 cancer and was “triple negative”. As a result, Mrs. Carter underwent 12 weeks of chemotherapy, four additional treatments of chemotherapy, and a double mastectomy and the removal of 21 lymph nodes (the cancer had spread there). Mrs. Carter also had reconstructive surgery for the removed breasts.5
Mrs. Carter and her husband sued the Army hospital under the Federal Tort Claims Act (FTCA),* alleging the medical providers’ negligence in failing to timely diagnose the breast cancer. A bench trial (judge only, no jury) found that the hospital liable with a large monetary award to the plaintiffs despite the hospital being “unable to concede liability”.6
In its Findings of Facts and Conclusions of Law, the Court pointed out that the failure to timely diagnose Mrs. Carter’s breast cancer was due to, among other things, the failure of communication among and between the medical providers who were involved in her care. In addition, poor or improper record keeping and retention (apparently the letter to Mrs. Carter ended up in her file in the mammography department and not in her medical chart)7, and the failure to follow-up and at least one unexplained cancellation of another mammogram all contributed to the negligence of the facility.
The Court also opined that had these failures not occurred, Mrs. Carter’s breast cancer could have been treated at its early Stage I, the chemotherapy and surgery would have been unnecessary and “breast conservation probably would have occurred.”8
Why neither of the two nurse practitioners ever tried to locate either the radiologists’ reports or follow-up on whether the letter was indeed sent to Mrs. Carter remains unclear. What is clear, however, is that their respective failures contributed to the failure to timely diagnose this patient’s breast cancer with tragic results.
This case is very instructive for those of you who are nurse practitioners, regardless of your practice setting. Following up with patients you see for whom you order diagnostic work done is essential. In addition, if a patient does not follow through with recommended diagnostic work, you must contact the patient and determine why the recommendation was not followed. Was it because the patient declined the recommendation or, as in this case, the patient never knew any recommendation was given?
In addition, when a patient does return to a clinic or out-patient facility, the patient record must be reviewed, the patient asked about treatment and recommendations in the first visit, and, if necessary, communicate with the prior health care provider. Had the second nurse practitioner done so and acted upon what she discovered, rather than simply order another mammogram and ultrasound (the former being cancelled with no reason given), the outcome may have been very different for this patient.
Third, adequate and complete documentation of any patient encounter must be done in the patient’s medical record so that others who do review your documentation obtain a complete picture of what was done and what needs to occur during the next patient encounter.
CASE NAME—Roben Carter and Timothy Carter v. United States of America , No. 3:11-0930 (M.D. Tenn. 2014)
- Carter and Carter v. United States of America, 1.
- Id., at 2.
- Id., at 4.
- Id., at 5.
- 6. Id., at 1.
- “Breast Cancer Diagnosis, Treatment Delayed: Nurse Practitioners Implicated In Lawsuit”, 22(8) Legal Eagle Eye Newsletter For The Nursing Profession, 1.
- Carter and Carter, supra note 1, at 16.
*When a case is brought under the Federal Tort Claims Act, the defendant is the United States of America because health care providers are employed by a governmental facility and are therefore acting on behalf of the government. In this case, health care was provided to active duty personnel and veterans through hospital networks established by the United States Government.
THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.