Legally Speaking: Alleged delay in diagnosis of breast cancer

April 1, 2010

A New York woman went to her gynecologist for an exam in 2005, complaining of a lump in her left breast.

Three months later, the patient went back to the breast surgeon, who again recommended an excisional biopsy, which the woman again refused. She was seen again 3 months later with the same recommendation and result. One year after the initial examination by the surgeon, the woman returned to the surgeon, noting that the lump had grown. She then agreed to the excisional biopsy, and stage IV breast cancer was diagnosed. The disease had spread to her lymph nodes, pelvis, and sacrum.

The patient sued both doctors, claiming that the diagnosis should have been made in 2005. She alleged that the gynecologist should have made a more timely referral and that the breast surgeon did not make a timely diagnosis and should have recommended a less invasive procedure than excisional biopsy, which would have diagnosed the cancer at her first visit.

LEGAL PERSPECTIVE Although a patient can, of course, refuse recommended procedures and treatments and is often given options to choose from for a course of action for herself, it is imperative that caregivers document in the chart what the patient has been told about the options given, the risks and benefits of each treatment, and the risks and benefits specific to the option chosen. This is especially critical in the possible delay of diagnosis of cancer case, in which the patient refuses to undergo the recommended diagnostic procedure.

Many risk managers advise that when a patient refuses a recommended procedure, the chart should include documentation of the patient's understanding of the risks associated with her decision, which may be written by the patient herself or may include her signature on a formal document stating her decision. It is not specifically stated in the case here, but because a $1.75 million settlement was paid in a case in whi ch the physician recommended a procedure over the course of a year, and the patient refused to undergo that procedure and then sued the physician for the delay, one might think it problematic that the surgeon just opined that the patient had a fibroadenoma in the first place or that the documentation in the chart was lacking as to whether the patient understood that the biopsy of the lump was necessary to obtain a diagnosis.