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Plaintiff argues docs should have recommended a mammogram – Defense Verdict

Virginia Lawyers Weekly//October 25, 2012

Plaintiff argues docs should have recommended a mammogram – Defense Verdict

Virginia Lawyers Weekly//October 25, 2012

Plaintiff’s decedent was seen by the providers at the defendant family practice over an approximately 22-year span. This care was episodic and occurred only when the decedent was ill or injured. At no time was the patient ever counseled by the healthcare providers, which included three physicians and three physician assistants, to return for a well woman visit, to perform self breast exams, or to obtain a mammogram.

Plaintiff turned 50 in 2001. Following her 50th birthday, plaintiff did not present for care for a period spanning four years and ten months. Finally, beginning in October 2006 and continuing through July 2007, plaintiff presented to the practice on five different occasions. In October 2006, she presented with right upper quadrant pain, nausea and heartburn. In November 2006, the patient presented with complaints consistent with sinusitis. In April, May and July 2007, the patient complained of right shoulder pain and axilla pain with lifting. She agreed to treat with Naprosyn and a cortisone injection.  The patient never returned to the practice after July 2, 2007, although she did call for a refill of the Naprosyn.

In November 2007, the patient developed severe neck pain and presented to the emergency department. She was diagnosed with a C5 fracture secondary to a lytic lesion, consistent with metastatic disease. Further work up revealed a 10 x 8 cm lesion in the right breast and additional sites of metastasis. The patient told her breast surgeon that she had complained of a breast lump to her primary care provider but had been told not to worry about it and was not directed to get a mammogram. There is no documentation of any such complaint in the patient’s chart at the defendant practice.

The patient died approximately 14 months after diagnosis in spite of appropriate radiation therapy and chemotherapy.

Plaintiff’s family practice and physician assistant experts testified that the standard of care required each of the physicians and physician assistants whose care was at issue to have discussed with the patient self breast exams, mammography and wellness checks at each of the visits in question. Plaintiff’s standard of care experts also testified that the physician assistant who cared for the patient in 2007 was required to have done a more thorough work up of the patient’s shoulder complaints, which would have led to earlier diagnosis of the breast cancer.  Plaintiff’s oncology expert testified that early diagnosis was possible at either Stage 0 or 1 and that diagnosis and treatment at either of those two disease stages would have resulted in the patient’s survival.

Defendant’s experts (two family practitioners and one physician assistant) testified that the standard of care did not require the providers to have performed a breast exam, discussed self breast exam, or urged the patient to undergo mammography during any of the patient visits.  These were not wellness visits and there were no documented complaints related to the breasts.  Defendant’s causation expert, who is chief of surgical oncology at a large teaching institution, testified that the patient’s cancer both developed and metastasized during her nearly five year absence from the practice. He also testified that because the patient had ‘triple negative’ breast cancer, earlier diagnosis and treatment would not have changed the prognosis or survival.

The case was submitted to the jury on day four of trial. The jury returned a defense verdict after just 45 minutes of deliberation.  Plaintiff has not filed post trial motions or a notice of appeal.


Type of action: Medical malpractice
Injuries alleged: Wrongful death
Court: Winchester Circuit Court
Tried before: Jury
Judge: John E. Wetsel Jr.
Date: Sept. 13, 2012
Special damages: Approximately $150,000 in medical expenses; approximately $15,000 in funeral and burial expenses
Verdict or Settlement: Defense verdict
Demand: None made
Highest offer: None
Attorneys for defendant: Susan L. Mitchell and Marc A. Brown, Fairfax
Insurance carriers: The Doctors Company

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