Breast cancer litigation involving pregnancy: Claims, injury, and awards

The Medical Malpractice Verdicts, Settlements & Experts database contains information gathered from three main sources: (1) state jury verdict publishers, (2) miscellaneous sources including court records, and (3) attorneys. The state jury verdict publishers' data source favors verdict over settlement information. Also, the attorney data source affects the data and skews it in favor of the plaintiff. Hence, this data source should not be considered complete or perfectly balanced.

Statistical analysis was not performed with the study data because of the small sample sizes. The percentages or ratios calculated with the study data can be compared with findings from other similar studies in order to develop a working hypothesis for further study.

The patients in this study ranged in age from 27 to 44 years, with an average age of 34 years. As a group, these patients were approximately 10 to 11 years younger, on average, than the patients associated with the breast cancer litigation cases discussed in the Hamer et al¹ and PIAA³ studies.

In this study, a lump is defined to include: a lump, a mass, a thickening, fullness, swelling, or an enlarged breast. All 25 patients, or 100% of the study cases, alleged that a breast lump was not diagnosed correctly. Approximately 74% of all patients in the Hamer et al study¹ claimed that a breast lump was not diagnosed correctly.

The patients discovered 72% of lumps, while 12% were discovered by physicians/nurses, and 16% were not specified. In both the Hamer et al¹ and the PIAA³ studies, lumps were found by the patient in 60% of cases.

Reasons the patient claimed that physicians did not follow up on breast lumps, or followed them up incorrectly, included: (1) lump was assigned a benign diagnosis (56%), (2) breast lump was not acknowledged by the doctor (12%), (3) failure to ensure follow-up (12%), (4) reliance on negative imaging tests (12%), and (5) miscellaneous reasons (8%).

In the Hamer et al¹/PIAA² studies, dismissing the lump as benign was reported in 58% and 35% of the cases, respectively.

A mammogram was performed in 7 of the 25 (28%) cases, of which there were no known cases of failure to read a mammogram correctly. Plaintiffs claimed failure to order a mammogram in 3 of the 25 (12%) cases. In one case, a radiologist refused a mammogram due to lactation. Ultrasound (US) was performed in only one known case. There was only one claim of failure to order a US exam.

All 25 plaintiffs in this study alleged failure to diagnose a breast lump correctly. Common claim subcategories include failure to: (1) biopsy a lump (32%), (2) obtain a second opinion (16%), and (3) order a mammogram (12%). There were no claims of failure to properly treat breast cancer.

The more common types of treatment included (1) mastectomy (83%), (2) chemotherapy (60%), (3) radiation therapy (24%), and (4) bone marrow transplant (8%).

The alleged delay in failure to diagnose breast cancer ranged from 2 months to a little more than 2 years. The corresponding average time delay was 12.2 months.

In the Hamer et al¹ and PIAA² studies, the corresponding average time delays were 15 and 14 months, respectively.

The most common types of alleged injury include: (1) terminal condition/ death (67%), (2) metastases (to sites including axillary lymph nodes) (55%), and (3) abortion (16%). The terminal condition/death rate of 67% is more than double the corresponding rate of 31% for cases in the Hamer et al¹ study.

Defendant information was not specified for about half of the cases in this study, but it appears that obstetricians and gynecologists are more likely to be involved than other specialty groups.

The cases were adjudicated as follows: 52% by verdict, 44% by settlement, and 4% were dismissed.

The mean/median award for these breast cancer litigation subcategories were: pregnancy (25 cases) $1,136,000/$675,000; death (16 cases) $1,608,000/$1,000,000; and abortion (3 cases) $1,167,000/$600,000.

The pregnancy award amounts are approximately three times greater than the corresponding award amounts in the Hamer et al¹ study.

For all cases in this study, patients claimed failure to diagnose a breast lump correctly. Hence, it is important that medical personnel have a policy for follow-up of breast lumps and a comprehensive system of communication to ensure the follow-up of these patients.

Guidelines and risk management suggestions regarding breast issues are provided by several authors.^4,6,7 Cady⁸ notes the unusual presentation of some breast cancers in his litigation population; he emphasizes that obscure physical findings frequently led to a failure to appreciate the real problem.

Overall, the plaintiffs in these breast cancer litigation cases involving pregnancy were young, with a high percentage of death cases. In his study of failure to diagnose breast cancer, Cady⁸ also found that patients were young and had advanced disease.

The higher awards in this study compared with general breast litigation data^1,3 are probably due to the increased severity of the patient's disability/injury, namely death. This finding is consistent with the findings of Brennan et al.⁹

Breast imaging can help in the care of pregnant patients with breast lumps. Pregnant and lactating women do not always have dense breasts, and mammography can be performed without substantial concern for the limitations of breast density. Mammography can be as useful in these women as it is in other women with breast signs and symptoms.¹⁰ For example, Liberman et al¹¹ reported that mammographic findings were present in 78% (18 of 23) of the cases.

Also, clinicians appear to be reluctant to use breast imaging in pregnant patients; however, this can lead to a delay in diagnosis. Ultrasound is the modality of choice for initial analysis of such a breast mass in younger pregnant patients. Mammography with shielding of the abdomen is recommended if there is suspicion of cancer.¹²

Clinical data shows that comparing pregnant patients with breast cancer with nonpregnant patients with breast cancer reveals no difference in survival.¹³ Pregnancy does not worsen the prognosis of breast cancer; rather, it is hypothesized that it obscures the disease and allows it to progress to a more advanced stage at presentation.¹⁴ This hypothesis¹⁴ coupled with Cady’s study⁸ prompts medical personnel to have a higher index of concern when dealing with pregnant patients who have obscure or vague findings.