Nurse Practitioner Case Study: Failure to recognize, diagnose and treat cancer

Nurse Practitioners and Medical Malpractice Case Study with Risk Management Strategies

Presented by CNA and NSO


Medical malpractice claims may be asserted against any healthcare practitioner, including advanced practice registered nurses and nurse practitioners. This case study involves a family nurse practitioner (FNP) working in an internal medicine practice.

 

Summary

A female in her mid-40s presented to her primary care physician (co-defendant) for her annual well-woman routine examination, as well as a complaint of post-menopausal bleeding. The primary care physician (PCP) performed a thorough examination of the patient, which included a pelvic exam, breast exam, pap smear and removal of cervical polyps. The PCP later testified that the breast inspection consisted of examining the patient’s breasts while standing and lying down; checking for changes in the size, shape, and/or symmetry; looking for redness, dimpling, and/or nipple discharge; and palpating the lymph nodes to check for abnormalities. Documentation in the healthcare information record noted the examination of both breasts as normal and unremarkable.

The patient reported that she had no known family history of breast or uterine cancers. The healthcare information record reflected that the patient had no complaints of any past or current breast pain or breast lumps at the time of the well-woman visit. However, she had been experiencing vaginal bleeding off and on for the past few months.

The following day, the patient presented to an outpatient radiology center to undergo the screening mammogram, as well as a pelvic ultrasound study that was ordered due to the post-menopausal bleeding. The studies were read and interpreted by a board-certified radiologist (co-defendant). The screening mammogram was compared to the prior screening mammograms, with the final impression noting a small new benign right breast calcification. The radiologist rated the study a BI-RADS1 (Breast Imaging Reporting and Data System) category two (2), indicating that, while there were findings, the right breast calcification appeared to be benign. A follow-up mammogram was recommended in one year. Notably, the patient's previous study was rated a BI-RADS category one (1).

After the screening mammogram and pelvic ultrasound were completed, the radiologist electronically transmitted the reports to the primary care provider’s office. The insured family nurse practitioner (FNP) (defendant) received both reports, noted the benign impressions and the BI-RADS score of two (2) of the mammogram. The FNP electronically filed the report into the patient’s healthcare information record. 

The insured FNP had not previously seen or treated the patient. She did not conduct or interpret the screening study and did not discuss the report with the ordering PCP. Later testimony of the FNP and PCP agreed that further discussion or follow-up action were not necessary as mammogram studies with BI-RADS categories one (1) or two (2) were normal/benign. Studies with BI-RADS categories zero (0) or three (3) through six (6) would require follow-up consistent with the patient’s circumstances and the score of the individual study.

Over the next five months, the patient visited her PCP several times for complaints such as a urinary tract infection and an upper respiratory infection, and a visit for pre-operative (left shoulder arthroscopic surgery) clearance with lab work. She did not complain or report of any breast pain or breast lumps during these visits.

Six months following her well-woman visit, the patient presented to her PCP complaining of a painful right breast lump that she had noticed one week prior. The PCP’s subsequent breast inspection confirmed the presence of the lump, which was described as firm, tender, and approximately three (3) centimeters by one (1) centimeter in size. The PCP ordered a diagnostic mammogram and breast ultrasound study that was performed the following day and interpreted by the same radiologist who completed her prior reports.

After a comparison with prior studies, the radiologist’s final impression was that the patient had a new complex cyst in the upper outer quadrant of the right breast that was suspicious. He rated the study a BIRADS category four (4), indicating suspicious findings, and recommended a biopsy. The results were sent to electronically to the patient’s PCP.

A biopsy was performed two days later, and subsequent pathology studies confirmed that the patient had invasive ductal carcinoma, which was later determined to be triple-negative (an aggressive form that is nonresponsive to many common courses of treatment).

The patient began treatment immediately with a non-party oncologist and non-party breast surgeon. Over the next five months, she underwent several cycles of chemotherapy, a bilateral mastectomy and started radiation therapy. One year after her diagnosis, it was determined that her cancer had metastasized to her lymph nodes, bone and lungs. The patient and her family made the decision to stop her cancer treatment, and she later succumbed to her illness. Six months after the patient’s death and despite being estranged, the patient’s husband (plaintiff) filed a lawsuit against her PCP, the insured FNP, the FNP’s employer, the radiologist and the radiologist’s employer.

 

Risk Management Comments

The lawsuit asserted that the defendants:

  • Failed to properly perform, read and interpret the patient’s screening mammogram study;
  • Improperly reported the incorrect results of that screening mammogram study;
  • Failed to adhere to accepted radiology standards;
  • Failed to recommend and/or order follow-up imaging studies, pharmaceutical treatment, or surgical intervention;
  • Failed to recognize, diagnose and treat the patient’s breast cancer, thereby delaying diagnosis and causing her death; and
  • Provided poor and substandard care by failing to obtain the patient’s informed consent prior to the annual screening mammogram study.


The defense team focused on the fact that the FNP did not see or treat the patient and did not conduct or interpret the screening mammography. The defense team also argued that the plaintiff’s allegations regarding a failure to properly perform, read, re-read and/or interpret screening mammogram were misguided because nurse practitioners do not perform these functions. Interpreting mammograms is the responsibility of a radiologist and far outside of the scope of practice of a nurse practitioner.

Defense counsel further asserted that the insured FNP’s involvement was limited to entering the mammogram report into the patient’s electronic healthcare information record. They countered that there was no deviation from the standard of care, as the report findings were benign and did not require further discussion with the PCP or follow-up actions. The defense team argued that the allegation regarding lack of informed consent were irrelevant given that the FNP did not see or treat the patient and did not perform the screening mammogram study.

 

Resolution

Based upon positive expert reviews, the defense filed a motion for summary judgment to dismiss the FNP from the lawsuit. The court concurred that there did not appear to be any viable theory of liability against the insured given that she never examined or treated the decedent, but instead merely relied upon the findings of the mammography report that was prepared by the defendant radiologist. The court granted the motion, and the insured was dismissed from the case.

The lawsuit against the FNP took seven (7) years from the time the case was filed before the FNP was dismissed. Legal expenses totaled more than $105,000.
(Monetary amounts represent the expenses made solely on behalf of the individually insured FNP and do not reflect payments made on behalf of the other parties involved in the claim. Amounts paid on behalf of the co-defendants named in the case are not available.)
 

Risk Control Recommendations

  • Compile a comprehensive patient clinical history, as well as relevant social and family history.
  • Document all patient-related discussions, consultations, clinical information and actions taken, including any treatment orders that are provided.
  • Engage in timely and proactive discussions with physicians and other members of the care team to ensure that the team is educated about the patient’s treatment plan.
  • Maintain competencies, including experience, training, and skill, consistent with the needs of assigned patients and the clinical setting.
  • Report any patient incident, injury or adverse outcome and subsequent treatment/response to risk management or the legal department.
  • Immediately contact your professional liability insurance carrier if you become aware of a filed or potential professional liability matter against you, receive a subpoena to testify in a deposition or trial, or have any reason to believe that there may be a potential impingement on your license to practice.
  • Provide your insurer with as much information as possible when reporting such matters, including contact information.
  • Copy and retain all legal documents for your records, including any summons and complaints, subpoenas, attorney letters, and any other legal documents pertaining to the matter.


1: The BI-RADS scale goes from zero (0) to six (6). BI-RADS level one (1) is negative. BI-RADS level (2) means there are findings, but they are benign. BI-RADS levels three (3) through (5) respectively correspond to concerning but probably benign, suspicious, and highly suspicious of malignancy. BI-RADS level six (6) means there has been a biopsy to confirm malignancy, and BI-RADS level zero (0) means the study was incomplete and additional imaging is required.

Resources

  • CNA and NSO. Nurse Practitioner Professional Liability Exposures Claim Report: 4th Edition. 2017. https://www.nso.com/npclaimreport 
  • D’Orsi CJ, Sickles EA, Mendelson EB, Morris EA, et al. ACR BI-RADS® Atlas, Breast Imaging Reporting and Data System. Reston, VA, American College of Radiology; 2013.

 

Disclaimers
These are illustrations of actual claims that were managed by the CNA insurance companies.  However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.

This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. This information is provided for general informational purposes only and is not intended to provide individualized guidance. All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. Any references to non-Aon, AIS, NSO, NSO websites are provided solely for convenience, and Aon, AIS, NSO and NSO disclaims any responsibility with respect to such websites. This information is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., NSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information.

Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc., a licensed producer in all states (TX 13695); (AR 100106022); in CA, MN, AIS Affinity Insurance Agency, Inc. (CA 0795465); in OK, AIS Affinity Insurance Services, Inc.; in CA, Aon Affinity Insurance Services, Inc., (CA 0G94493), Aon Direct Insurance Administrators and Berkely Insurance Agency and in NY, AIS Affinity Insurance Agency.

Topics:

#Cancer #Case Study #Medical Malpractice


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