Speaker 1: You are listening to Your Practice Made Perfect; support, protection, and advice for practicing medical professionals, brought to you by SVMIC.


Brian: Hello and welcome to this episode of our podcast. My name is Brian Fortenberry, and today we're going to be looking at another closed claim case to where we're going to be able to go through the case, then have a discussion. Our expert today that is joining us is an attorney. His name, Jim Howe. Jim, thanks for being here.


Jim: You're welcome Brian. Good to be with you.


Brian: Before we really get into even talking about the case at all Jim, why don't you go ahead and tell our listeners a little bit about yourself, your experience, and your work here at SVMIC.


Jim: I began my career at State Volunteer in 1980. So, I've been here coming up on the completion of 38 years, pretty much my entire career. I'm currently the Senior Vice President of claims, and have been managing the Claims Department since 1996.


Brian: Well, your expertise with this case today is going to be really beneficial certainly to our listeners out there. Prior to getting into the discussion though, I want to read for everyone a basic synopsis of this case, so they'll know exactly what we're talking about. The possibility of developing breast cancer is a haunting concern for most women. A perceived delay in diagnosis is one of the leading causes of malpractice litigation in the United States. Juries can be expected to sympathize with breast cancer victims. These cases can be very challenging to defend. Nonetheless, the exercise of well-documented appropriate clinical judgment can result in successful defense, as this case demonstrates.


At age 36, the patient underwent her first screening mammogram on referral from her primary care physician. She gave a history of longstanding breast pain, greater on the right. Her family history included postmenopausal breast cancer in her paternal grandmother and great-aunt. This initial mammogram showed dense breasts with some microcalcifications, but no masses and no signs of malignancy. A follow-up was recommended at age 40. About two years later, the patient was referred to our insured general surgeon for evaluation of continued breast pain. Bilateral mammography had been done showing extremely dense breast tissue without any change in previous noted microcalcifications and without masses.


This study was noted as BI-RADS category two, and follow-up at age 40 was recommended. Detailed history was taken. The office exam showed no dimpling or retraction, and no masses in either breast. A discrete cystic feeling mass was noted in the right breast, location approximately 330. Office ultrasound led to an impression of probably cyst, and the patient declined aspiration of the mass. Mastodynia was diagnosed. About a month later, the patient elected to accept aspiration of the mass, with cytology revealing no malignant or dysplastic cells.


Over the next six years, the patient visited her surgeon eight times, undergoing five more mammograms including an MRI study and four more ultrasounds. Her fibrocystic disease was closely monitored. Cysts were identified and treated, but no evidence of malignancy was found in any of these studies. BI-RADS classification was increased to category three in the later studies, and a recommended follow-up interval was reduced to six months. The patient did express increasing concerns about the possibility of developing breast cancer. About four months after her latest imaging study, the patient, now 44 years old, saw her gynecologist for a routine exam. The physician noted the possibility of a mass in the right breast and referred the patient back to the general surgeon.


Bilateral mammography and ultrasound were again obtained, and no masses or other indications of malignancy were noted by the radiologist. The radiologist specifically noted that the area of suspicion in the right breast underwent ultrasound, and no abnormality was noted. The surgeon's physical exam noted breast without skin dimpling, nipple retraction, or palpable discrete masses. Mild bilateral tenderness was noted with a nodular thickening area of tissue in the upper outer quadrant of the right breast. The biopsy was not felt to be indicated. The patient was asked to check her breast after her period, and to return if she felt there was any persistent mass.


The patient saw the surgeon again about five months later, noting no problems with her breast, other than a possible infection of the glands of the right nipple areolar complex. Breast exams showed no dimpling, retraction, or palpable discrete masses. Three months after that exam, now eight months after the latest imaging study, the patient again presented to her surgeon, stating that, "She felt something different in her right breast." The exam showed a right breast now larger than the left. The area of previously noted thickening tissue in the right breast now contained a hard central area that represented a distinct change from the prior exam, although, still not a discrete mass.


Office ultrasound was immediately done, and the area appeared very suspicious. Immediate mammography was recommended to be followed by biopsy. Mammogram showed no architectural distortion or discrete mass in the area. Ultrasounds showed the area to be poorly marginated and of low echogenicity. Biopsy was recommended. The general surgeon's biopsy noted extremely hard tissue, very suspicious for malignancy. The path report confirmed an invasive breast cancer. The patient went on to have right mastectomy, followed by chemotherapy. She later opted to undergo prophylactic left mastectomy.


Not surprisingly, the patient filed a lawsuit against her general surgeon, alleging that her cancer should have been diagnosed at least eight months sooner. She alleged that when her gynecologist raised the question of a right breast mass, a biopsy should have been done, or at least an MRI should have been performed to further test the suspicious area. Our insured surgeon strongly believed that his management of this patient had been in complete conformity with a standard of acceptable professional practice. The company's internal review and independent expert reviews were in full agreement. Though a qualified general surgeon testified for the plaintiff that an MRI was required at the time the possibility of a palpable mass was raised, a jury unanimously determined that no malpractice had occurred, and found in favor of the surgeon. So Jim, what factors contributed to the successful defense of this case eventually here?


Jim: Well Brian, I think most importantly, the medicine was really good. It was solid medicine as you recounted in your reading. Our internal review found absolutely no problem with the quality of care. In fact, the internal reviewer said, "This is good medicine, good management, and good documentation," and I think that pretty well sums it up. So, I think that's the most important thing. Secondarily, but certainly not unimportantly, we had in this particular case, a physician who turned out to be a very strong witness at the trial of the case, very articulate, very passionate about the quality of his care, and very persuasive to the jury in the end.


Brian: You have to believe obviously, one of the great points is whenever you know you've practiced good medicine. But I think not to undersell, but the ability to articulate that to a jury and to be able to show that compassion, but be confident about yourself and your care, knowing that it was good care and be able to get that over to the jury. That's got to help in a case.


Jim: Well, that's exactly right. When you really look at the nature of the trial of a lawsuit in our justice system, there's a lot of ceremony to it. It's a ceremonial presentation of whatever the facts of the case might be to the jury, and it helps a lot when you're defending a physician, as we were in this case, who is not only committed to the defense of the case and confident in the defense of the case, but can simply communicate effectively to a jury. If a jury finds that doctor to be likable and trustworthy, as they did in this case, it goes a long way toward successful defending.


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Brian: In this case, had all the reasonable steps been taken in your review of this over the years to monitor this patient's long standing condition? Had they really done that?


Jim: Yeah, we really thought so. I mean, if you went through the medical chronology, which you did a great job of outlining, it was very detailed. We're talking about a span over six years-


Brian: Wow.


Jim: ... of seeing this doctor, and other doctors, on a regular basis. As you indicated, over those six years, there were eight visits that included five mammograms, four ultrasounds, and on one occasion, the aspiration of what turned out to be a very innocent benign cyst. But, this doctor was very, very closely following this patient. I think as importantly for the defense of the case, every step of the way the record keeping was just superb. It was probably as good a medical record from a defense analyst as any I have ever seen. It was very, very well done. It's hard to overstate the value of well-kept records when you're presenting a case to a jury. When a jury sees a very comfortable and confident doctor in front of them, explaining the care and all of that is consistent with very detailed, very timely medical notes, it presents a very compelling case for the defense.


Brian: The quality of medical record keeping and documentation is showing a view of exactly what happened at that time. There's really no revision as history in that. That might be the best witness you have, right?


Jim: Oh, that's a good point. It's not a matter of simply presenting a lawyer's argument about what we think happened. I mean, it's outlined in black and white for the jury to see, and it's very, very important to the defense of a case.


Brian: In this case, we have a good physician that practices good medicine, that is a good documenter, and is very articulate, and he still manages to get sued in a situation like this. So, just because you did all the right things doesn't automatically make you immune from finding yourself in a lawsuit, right?


Jim: Well, that's absolutely correct. I mean, when you think about the nature of a medical malpractice case, each case without exception involves some measure of sympathy, sometimes great sympathy for a patient and for a patient's family, and that's not surprising at all to see a lawsuit come out of a situation like this. But, I think the lesson to be learned, from a strictly legal standpoint here for us, is that despite the nature of a case like this involving what any of us would find to be a very, very sympathetic picture, juries, by and large, take their responsibilities very, very seriously. They know they're not supposed to be deciding a case based on sympathy, and there are always some exceptions. But, generally speaking, I think they take the obligation of assessing a case like this objectively without focusing on the sympathy. They take those obligations quite seriously, and you can see that play out in the courtroom.


Brian: As we get ready to wrap up here, my takeaways from this are, obviously, making good decisions in the medical care, making well-documented medical records, and then the ability to articulate your care. Some key components that would help any physician. What do you have to add really to that, that is a main takeaway, in the way of a physician seeing this case, that would help them with future litigation, or at least suits?


Jim: Well, I think we've outlined the facts in great detail. To me, the one other point that might be worth considering is how important it was in this particular case for this physician to commit to their own defense. The defense of a malpractice case is a difficult proposition. Most doctors would tell you that being sued for medical malpractice is the single most traumatic event of their careers. We hear that time and time again from insurers who are facing a situation like this. So, it is just extremely important for a physician to be able to deal with the inherent difficulty and trauma of defending a case. The cases are traumatic on both sides. I mean, obviously there's a lot of trauma going on from the standpoint of the plaintiffs in a lawsuit, but equally as much from the defense. It takes a pretty stout heart, over a span of normally many years during the pendency of a case, to be willing to commit to defending what you believe was good medicine.


Brian: Well, you do a fantastic job, as well as your colleagues, in helping physicians get through a very, very difficult time in their professional lives. Jim, thank you for being here and taking the time to discuss this with us.


Jim: You're welcome Brian. Good to be with you.


Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at SVMIC.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.