When it comes to medical malpractice, sometimes it’s as much what the physicians and health care professionals did not do as what they did.
This was the case for plaintiffs in Uriell v. Regents of UC, who accused a surgeon and surgeon’s employer of failure to diagnose breast cancer resulting in the wrongful death of patient, who was a wife and mother of three children.
A central question here was not only whether the doctor had breached the applicable standard of care, but also whether it had much effect. The type of cancer the patient had was almost certainly terminal. However, there was a real question as to how much longer she might have lived had the malignancy been diagnosed sooner.
According to court records, decedent had a long family history of breast cancer. Her mother had been diagnosed in her early 50s and died about 15 years later. Also, her paternal grandmother and 10 great aunts all died due to complications from breast cancer.
In mid-2007, husband of patient discovered a lump deep in his wife’s breast. The lump was approximately the size of a pencil eraser. It was firm and didn’t move.
Because of her family history, patient immediately sought consultation from her primary care physician. He ordered a mammogram and ultrasound. The mammogram, according to radiologist, indicated no suspicious masses, but indicated her tissue was extremely dense, and this could obscure a lesion. In the ultrasound, a collection of “small, simple cysts” was noted in the area.
Patient was then referred to a surgeon specializing in breast cancer – the defendant in this case. Defendant doctor examined the area and indicated she believed the lump was a cyst and she did not think patient had cancer. Surgeon offered to remove the cysts, but indicated she didn’t think it was necessary. She urged patient to cut back on caffeine. No follow-up testing or MRI was ordered.
About 18 months later, patient began complaining of pain in her back and symptoms akin to a persistent flu. Her breast had also altered in appearance. She then underwent an MRI, a mammogram, another ultrasound and a biopsy. She was soon after diagnosed with cancer, and was told the condition could not be cured. She was also told she had the cancer for some time.
She received treatment and initially responded well, but died within 18 months of her diagnosis.
Her husband and minor children sued the hospital and surgeon for wrongful death. A surgical expert for plaintiff theorized defendant doctor breached the care standard by failing to biopsy the breast at the first appointment and failing to order an MRI. Had those measures been taken, he said, the diagnosis likely could have been made at that time. This course of action should have been taken considering patient’s family history.
The surgeon herself testified she had not reviewed patient’s family medical history, which she conceded was a breach of applicable care standard. Although follow-up testing would be required for anyone who had a 20 percent lifetime risk or higher (based on family history and other factors), patient was not tested because her assigned risk was just 17 percent. However, doctor did tell patient that analysis usually underestimated the risk.
Expert witness for hospital countered plaintiff argument patient would have lived 10 years or more had she received earlier diagnosis, because the cancer was already in Stage IV at the time of the initial appointment. Although conceding technology and medical advancements have improved, the expert stated the disease is fatal. While earlier treatment might have extended her life, he could not say it would have done so beyond three years.
However as trial judge noted, all life is terminal. So in wrongful death cases, the judge stated, “We’re talking about the fact that the negligence caused the death earlier than it would have otherwise occurred.” It was up to the jury, he stated, to determine how long her life might have been extended.
Ultimately, a jury determined defendant was negligent in diagnosis and treatment and that negligence was a substantial factor causing harm to the family. Jury awarded $550,000, plus costs, to family.
That verdict was recently upheld on appeal.
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Uriell v. Regents of UC, Feb. 20, 2015, California Court of Appeal, Fourth Appellate District, Division One
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