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Nursing Malpractice Alleged When Suspected Breast Cancer Patient Doesn't Follow Up
Michigan Ave. Not. Bank v. County of Cook, 714 N.E.2d 1013 - IL (1999)

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Summary: Breast Cancer is a well-defined and treatable if not always curable disease process. Once suspicious findings-lumps, nodules, nipple discharge or other telltale signs of a problem are noted-prompt evaluation and follow-up care is essential. In this case, a patient with a family history of breast cancer presented with a "mass" and was evaluated. She did not follow-up as directed and when she later died of breast cancer, her estate would sue for "failure to diagnose, treat."

The 22-year-old woman was seen at a family planning clinic. Part of the assessment/examination included a routine breast exam. The nurse palpated a mass in the woman's left breast.

"The detection of a lump in the breast is a common occurrence. Although most lumps are not caused by cancer, the possibility of malignancy must always be considered. Thus, from the moment a lump or a suspicious change in texture or resistance is felt in some part of the breast, a series of decisions must be taken to exclude or establish the diagnosis of cancer."2

A family history revealed that the patient's mother had died of breast cancer.

"A cancerous tumor of breast tissue, the most common cancer in women and the second leading cause of cancer death for women in the World. The rate increases between 30 to 50 years of age and reaches a second peak at 65 years of age. Risk factors include a family history of breast cancer, no children, exposure to radiation, young age when menstruation began, late menopause, being overweight, diabetes, high blood pressure, long-term cystic disease of the breast, and, possibly, hormone therapy after menopause. Women who are over 40 years of age when they bear their first child and patients with cancer in other areas also have a greater risk of getting breast cancer."3

The nurse referred her to a nearby breast clinic for evaluation of the suspicious lump. Both a nurse and physician would verify the presence of the finding.

"Beginning symptoms, found in most cases by self-examination, include a small painless lump, thick or dimpled skin, or nipple withdrawal. As the tumor grows there may be a nipple discharge, pain, ulcers, and swollen lymph glands under the arms. The diagnosis is made by a careful physical examination, a breast scan (mammography), and examination of tumor cells."3

The patient was instructed to return in three months for evaluation and follow-up of the suspicious mass. Given the family history and nature of the lump, the patient was instructed that the likelihood of malignancy was high.

The suspicious findings and instructions for the patient to follow-up were communicated to the patient. They were also documented in the patient's chart carefully. It was emphasized that the finding needed to be monitored in light of the patient's family history. Despite this instruction, the woman did not return in three months as directed.

No further evaluation would be documented until two years later when a formal diagnosis of Breast Cancer was made. In addition to the cancer in the breast, metastasis to the neck and arm was noted.

"Tumors are more common in the left than in the right breast and in the upper and outer parts of the breast. Spreading through the lymph system to lymph nodes under the arm (axillary) and to bone, lung, brain, and liver is common. Surgical treatment, depending on the tumor, may be a radical, modified radical or simple removal of the breast (mastectomy), with the removal of axillary nodes."3

A radical mastectomy was performed and followed by standard chemotherapy/radiation treatment. The cancer did not respond to the therapy. The patient, initially suspected of having disease at 22, would die at 25.

Due to patient's lack of follow-up, treatment of the disease was potentially delayed for two crucial years.

"The best chance for successful treatment occurs when cancer is found early. Mammograms, or special x-rays of the breast, can detect more than 90 percent of all cancers and should be part of every woman's breast health program, along with breast self-exam and physical exam by a doctor. If a cancer is found early, it is more than 90 percent likely to be completely curable."3

Following her death, the patient's estate filed a lawsuit against the Family Planning Clinic and the Breast Center nurses & physicians. The suit alleged negligence and medical malpractice in the treatment/diagnosis of the patient's Breast Cancer.

Noting the circumstances of the case, summary judgement was initially handed down in favor of the defendants by the court. It noted that acceptable Nursing/Medical Standards and Procedure had been followed in the assessment, documentation and instruction of the patient with a potential Breast Cancer diagnosis.

The administrator of the patient's estate appealed.

Questions to be answered:

1. Was either the Nursing or Medical staff at either the Family Planning Clinic or Breast Center negligent in their examination or duty to inform the patient of her potential diagnosis?

2. Was prompt and early recognition/treatment of the patient's cancer delayed or hindered by the actions of the nurses or physicians?

3. Was the patient's "failure to follow-up as instructed" responsible for the unmonitored progression of the disease and resulting metastasis?

The court noted that clearly, the woman's potential condition had been identified appropriately. The patient had been informed that she was at high risk for Breast Cancer and that further evaluation was needed. She was made aware of the findings and what they could represent.

No claim of "failure to treat appropriately" could be substantiated.

The court recognized that no treatment had in fact been given by the Family Planning facility or the Breast Clinic. The reason no treatment had been given was strictly due to the patient's failure to comply with stated instructions for follow-up.

The documentation of the early suspicious findings and recommended follow-up instructions were clearly noted in the chart. Noted as well was the fact that the woman did not comply as instructed.

When the cancer was finally detected and treated, it was known that the cancer had spread. At that point the removal of the cancerous breast by itself would not offer a cure.

"If I do get breast cancer, a mastectomy gives me my best shot at survival.

A woman may make the psychological leap of assuming "the more I suffer, the more I deserve to be cured" -- a natural reaction to a frightening disease. Natural but misguided. "Women don't die of this disease because it comes back in the breast, but because of a spread to the bones or liver." "If the cancer hasn't spread before surgery, a mastectomy and breast-preserving lumpectomy, followed by a course of radiation treatments offer the same outcome. And if it has already spread, you need other treatment to cure the distant metastasis."3

The appellate court affirmed the judgement of the lower court.

This case illustrates how crucial early detection and follow-up care of suspicious Breast findings are. It shows also how frivolous lawsuits can be brought against nurses and physicians literally "at will." At no point in the case was there clear evidence of negligence or wrongdoing.

The records show that the initial examination was done quite well. The patient received excellent assessment/guidance when the pre-cancerous findings were initially detected. As a reward for their attention to detail and assessment, the nurses and physicians were dragged into a lawsuit and appeals process.

Despite it's poor chances of success and lack of a case, the administrator of the estate, seeking any type of reward chose to bring the suit. Even after the complaint was initially dismissed, the plaintiff chose to appeal.

For each of the nurses and physicians involved, legal costs needed to be paid and time was lost from employment to attend the depositions, trials and legal proceedings. The fortunate ones among them would have costs covered by malpractice insurance policies.

Commonly, a lawsuit is initiated after an employee has left the facility for another job. An employer in this case is under no obligation to provide legal counsel.

Related Links Sections:

Breast Cancer, Cancer Oncology & Malignancy, Direct Patient Care on: The Nurse Friendly:

Breast Self Examinations, BSEs, Cancer, Oncology & Malignancy on: The Nurse Friendly:

Clinical Charting and Documentation, Nurses Notes:

Courtroom Directory:

Direct Patient Care Links on: The Nurse Friendly:


Mandatory Overtime, Nursing Quality of Patient Care, Short Staffing on: The Nurse Friendly:

Medical Legal Consulting Nurse Entrepreneurs:

Nursing Shortages, Short Staffing on: The Nurse Friendly:

Oncology (Cancer) Nurses on: The Nurse Friendly:

Radical Mastectomy, Cancer Oncology & Malignancy on: The Nurse Friendly:

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State v. Southern, 980 P.2d 3 - MT (1999)

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August 15, 1999: Violent Psychiatric Patient Attacks Nurse, No Legal Recourse Against Facility or Psychiatrist?
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1. 40 RRNL 4 (September 1999)

2. Canadian Medical Association. 1998. Clinical Practice Guidelines For The Care And Treatment Of Breast Cancer. Retrieved October 24, 1999 from the World Wide Web.

3. Homeopathy Clinic. No Date given. Breast Cancer: Retrieved October 24, 1999 from the World Wide Web.

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Created on October 24, 1999

Last updated by Andrew Lopez, RN on March 23, 2017

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