EMAIL TO A FRIEND COMMENT

 

Significant Damages for Failure to Diagnose Breast Cancer


A woman, whose husband had retired from the Army, received her regular medical care at an Army hospital. Upon leaving the Army, the husband paid $1,000 monthly COBRA premiums for eighteen months to TRICARE, the military insurance plan for soldiers and their dependents. He also made some co-payments for services his wife received.

 

She discovered a single lump on each side of her breasts. Two months after the discovery, she was seen by a nurse practitioner at the Army hospital. Both lumps were approximately one centimeter in size and could be felt. The nurse practitioner ordered a bilateral diagnostic mammography for approximately three weeks later. The radiologist who read her mammogram determined that it was suggestive of malignancy due to the palpable solid masses, even though the mammogram and ultrasound did not indicate whether the masses were malignant. The head of mammography services wrote the woman a letter suggesting she follow up with her primary care provider for a referral to a surgeon. However, the letter was misfiled and was never sent to the woman.

 

Having heard nothing of the results of her mammography, the woman returned to her primary care provider five months later. The nurse practitioner she saw that day also ordered a bilateral diagnostic mammography and ultrasound. For unclear reasons, those orders were cancelled or revised so that no mammography was done and only an ultrasound was done on the left breast about two months later. Another radiologist interpreted the ultrasound of the left breast as being benign. The woman was not notified of the results.

 

She returned to the hospital two months later. An image of her right breast was read as suggestive of malignancy, and a biopsy was recommended. A subsequent needle biopsy revealed an intermediate grade infiltrating ductal carcinoma. The woman decided to go to Vanderbilt University Medical Center (VUMC) for further care.

 

When her treating physician at VUMC first examined her, the lump in her right breast was around five to seven centimeters in size. It was clinically sized as being Stage 3 cancer and was triple negative. Triple-negative breast cancer means that the cancer cells are negative for estrogen receptors, progesterone receptors, and HER2 (human epidermal growth factor receptor 2). Consequently, the tumor is not fed by estrogen in the body, generally limiting the available treatment to chemotherapy. This is often considered to be the most aggressive type of breast cancer, at least in part because there are no targets to treat via hormone therapy or HER2 directed therapy.

 

Even after twelve weeks of chemotherapy, the tumor was two centimeters, and at least two lymph nodes had cancer cells present. In addition to chemotherapy, the woman underwent a double mastectomy and removal of 21 lymph nodes. Thereafter she underwent breast reconstruction surgery.

 

The woman and her husband sued the government under the Federal Tort Claims Act (FTCA) alleging that medical providers at the Army hospital were negligent in failing to timely diagnose her breast cancer.

 

At trial, the woman’s treating physician testified that when the woman first presented to the Army hospital having discovered the lumps, it was likely that the cancer was Stage 1 and had not metastasized. Further, had the cancer been diagnosed at that time, the treatment would have been far less aggressive. Instead of a mastectomy, there probably would have been a lumpectomy, and instead of a full axillary lymph node dissection, she would have likely had a sentinel lymph node biopsy. While she would have undergone chemotherapy, it is not likely that Cisplatin would have been used in the regimen. The expert also testified that patients who are triple negative, those who have a large tumor and lymph node involvement, have a much lower survival rate. There was a 60% likelihood that her cancer would recur within five to seven years. The longer a patient survives past the five to seven year mark, the less likely that cancer will recur. If the cancer does recur, however, it will almost certainly be fatal.

 

The woman testified that she would not have elected a bilateral mastectomy had the cancer been discovered by the Army hospital when it was Stage 1. She explained the reason she elected to have both breasts removed, instead of just the right cancerous one, was because she was young and did not want to have to worry about it and wanted to increase the likelihood that her breasts would look symmetrical.

 

After a bench trial, the United States District Court for the Middle District of Tennessee found the government was liable. The court found that the failure of the Army providers to timely diagnose the woman's breast cancer allowed the triple negative cancer to grow from a (likely) curable Stage 1 status to a Stage III status that metastasized to the lymph nodes and increased the likelihood of a recurrence that would be fatal. Had the Army hospital properly diagnosed the breast cancer, she would have still had to have undergone chemotherapy. As a consequence, she would have still had the stomach issues, acid reflux, and hemorrhoids that she attributed to that treatment. However, the delay required otherwise unnecessary surgeries and treatment, including a mastectomy (though not necessarily a double mastectomy), lymph node removal, and reconstruction surgery. In addition to the pain that is inherent in these surgeries and the subsequent recovery period, the surgeries left disfigurement in the form of scarring in several areas, including the breasts, under the right armpit (where the lymph nodes were removed) and the inner thighs.

 

The (likely) unnecessary surgery also resulted in the woman developing lymphedema of her arm as a side effect of her mastectomy and lymph node dissection. Lymphedema is the accumulation of lymphatic fluid in the interstitial tissue that causes swelling of the limb. This pain is exacerbated by activities such as driving, vacuuming, typing on the computer, and other repetitive tasks. To relieve the tingling pain, the woman was forced to wear a compression sleeve on her arm, particularly in the summer.

 

The court went on to determine damages. Applying Tennessee law, the court held that a plaintiff may be compensated for any economic or pecuniary losses that naturally result from the defendant's wrongful conduct which include out-of-pocket medical expenses, future medical expenses, lost wages, and lost earning potential. A plaintiff is also entitled to recover compensatory damages for non-economic loss or injury which includes pain and suffering, permanent impairment and/or disfigurement, and loss of enjoyment of life.

 

The court took issue with the couple’s requests for economic damages. First, the court refused to award $251,973 for past medical expenses. The court reasoned that, under Tennessee statutory law, a medical malpractice plaintiff may not recover for the cost of medical care if that cost was indemnified in whole or in part by employer-provided insurance. Excluded, however, from the statute's general operation are collateral payments made where the collateral payor has subrogation rights. Where the injured insured must repay the insurer out of any damages recovered, the insured gets no double recovery. In light of the statute and its construction by Tennessee courts, the court found that the couple was not entitled to recover the entire $251,973. When the woman was treated at the Army hospital, the treatment was paid for by the government. After the husband left the military, he received COBRA insurance. No evidence suggests that any entity has sought or will seek a subrogation lien against any award of damages, and 32 C.F.R. § 537.4 states that claims by the government for medical services and expenses are not collectible where the tortfeasor is a department, agency or instrumentality of the United States.

 

The court also refused to award 40% of the total past medical expenses, which the couple contended was the amount that the husband was required to pay for medical bills. The court found that no receipts, cancelled checks, credit card statements, or other documents were offered to support the suggestion that the husband had paid 30% to 40% of the bills. The couple's belief was speculative and thus the court found it insufficient to support a $75,000 to $100,000 award.

 

The court also refused to award the plaintiffs the amount of the payment of COBRA premiums, $18,000. The court reasoned that when the husband left the military, he purchased COBRA insurance. Presumably that was done so that his entire family would have insurance coverage, and presumably COBRA insurance would have been purchased regardless of his wife's condition. The couple failed to show that the Army hospital's negligence caused the purchase and, more fundamentally, they have not shown that the premiums paid were attributable to the wife's condition.

 

The court did award the couple $12,000 for past medical expenses. Under a Tennessee statute, the couple was entitled to recover the $12,000 that was paid out-of-pocket for the breast reconstruction surgery that the government appeared to concede was appropriate.

 

The court also took issue with the couple’s request for future medical expenses. The couple sought $767,069 in future medical expenses based upon the present value calculations. The court did not award the amount requested because it was based upon two premises that lacked sufficient evidentiary support. First, the couple’s figures were based upon the assumption that if the cancer returns it will spread to the lungs, liver, and brain. Second, the couple’s figures assumed treatment for four years.

 

As to the first point, the court could not say that it was more likely than not that, should the wife's breast cancer return, it will necessarily spread to the lung, liver, and brain. The woman’s treating oncologist, did not so testify. The only testimony on this score by the woman’s treating oncologist was her unexplored statement that cancer cells could attach onto another organ like the liver or lung. And when cancer recurs, it recurs outside of the breast, somewhere else in the body and grows there, and that is what kills a breast cancer patient. She offered no opinion at trial on the likelihood that a recurrent cancer would occur in those organs, and her expert report only made a passing reference to a significant degree of spread and area of invasion, without any reference to the location(s) where that is likely to occur.

 

As to the second point, similarly, the couple failed to show by a preponderance of the evidence that, should the cancer recur, the wife will require treatment for four years. Again, the woman’s treating oncologist did not so testify, and her supplemental expert report can be read to suggest short survival period because the report states that, upon recurrence chemotherapy will extend her life by perhaps a year or more. The court held that to remove awards for future medical expenses from the realm of speculation, persons seeking future medical expenses must present evidence that additional medical treatment is reasonably certain to be required in the future. This requires more than a mere likelihood or possibility. The plaintiff must prove that he or she will, more probably than not, need these medical services in the future. The court found that the record was insufficient to conclude that if the cancer returns it will metastasize to the liver, lungs, or brain, let alone all three organs. It was also insufficient to conclude that, if the cancer does recur, the wife will require treatment for four years.

 

The court found sufficient support for the conclusion that breast cancer is more likely than not to recur and there will be two years of treatment. According to the present value calculations, the costs of treatment for breast cancer for a two year period were between $140,231 and $261,372. Although there was no competent evidence on the likelihood that the cancer will spread to the liver, lungs and/or brain, the court awarded the highest projected figure for the return of breast cancer—$261,372—in an attempt to at least partially take into account the fact that the woman’s treating oncologist opined that breast cancer would spread somewhere.

 

The United States District Court for the Middle District of Tennessee awarded the couple $5,233,590.50, consisting of $901,812 in economic damages for past medical expenses, future medical expenses, and lost earning capacity, $3,000,000 in non-economic damages to the wife, and $1,331,778.50 on the husband's loss of consortium claims, which included damages for funeral expenses and loss of services.

 

See: Carter v. U.S., 2014 WL 1630824 (M.D.Tenn., April 23, 2014) (not designated for publication).

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

 

REPRINTS & PERMISSIONS COMMENT