Failure to Diagnose

A young woman’s routine checkup takes a devastating turn when a missed diagnosis leads to metastatic turmoil. Join Dr. Sally Miller, Fitzgerald faculty member and expert witness, as she dives into the malpractice case, exposing missed red flags and the importance of advocating for patients.

Voiceover: Every minute someone’s life takes a terrifying detour not down a dark alley, but into the sterile, bright halls of healing. They walk in seeking care and find themselves plunged into a nightmare. Most malpractice claims in hospitals are related to surgical errors, whereas most claims for outpatient care, which accounts for more than half of the paid malpractice claims, are related to missed or late diagnosis. 

Now, before you raise a pitchfork at every white coat you see, let’s be clear this isn’t an indictment. It’s a revelation. Because the truth is, any provider, any nurse, any human being capable of brilliance is also capable of a mistake. This is about understanding why and using that knowledge to build a safer future for every patient who walks through those doors. 

Welcome to FHEA’s Scrubs and Subpoenas: Tales from the Witness Stand, a podcast where we’ll peel back the sterile sheets and delve into the real stories of medical malpractice. Each episode a cautionary tale, a blueprint for change, a reminder that even in the darkest corners of human error, there’s a light, the light of knowledge, the light of empathy, the light of a future where healthcare becomes not a gamble, but a guarantee. 

So, join us as we dissect the mistakes, illuminate the flaws, and ultimately learn to heal not just bodies, but the very system itself. 

Jannah Amiel: Hello and welcome to another episode of Scrubs and Subpoenas. I’m your host, Jannah Amiel, and joining me again, of course, the amazing, wonderful Dr. Sally Miller. How are you, Dr. Miller?  

Sally Miller: Amazing and wonderful, apparently.  

JA: Well, you know, I said it. So, it is true. There you go.  

SM: I do my very best.  

JA: You do great. And I’m so happy to have you again. 

For those of you that might be joining us or listening in for the first time, we’re going to break down some real medical malpractice cases. So, our podcast, we actually talk about some real patient cases that have happened. Dr. Sally Miller serves as an expert witness and so we have the pleasure of really looking at these stories, talking about these stories, not just from the perspective of, ‘Wow, these are interesting. I can’t believe it happened.’  

But the fact that we’re all clinicians, right? We are all healthcare providers in some shape, way, or form. And it’s really important to talk about when things don’t go quite as well as we think that they might. Right. Mistakes happen. We are humans. We all are going to make mistakes. And this is a really good opportunity for us to learn, right. 

And to see how do we do better. Right. How do we practice better. So, I’m really excited to get into our first story. I love listening in on these. As you’re listening in, one thing that’s fun that we like to try to do is try to guess what side Dr. Miller actually served on. Was it the defense or was it the plaintiff side? 

And that’s something that I find really kind of interesting as I’m listening to how these stories play out, where an expert witness, like Dr. Miller, might serve. So, without further ado, I’m going to be quiet. I want to get into the story. I know you guys are all really excited to hear it, and I’m ready to go when you are, Dr. Miller. 

SM: And I’m ready to go. And I will really try-and I know that I always try not to give away which side I was retained by. And yet it usually seems to, you know, just seems to become evident. But, you know, as I look at every one of these when I prepare for my time with you and going over these when I look back and read some of these because, you know, years ago now, I think, ‘Oh, man,’ like I-you know, regardless of the side that retained me, I can look at these things and see how they seem like innocent mistakes. 

You know, some of the things that actually can lead to catastrophic outcomes, they just seem like innocent mistakes or day-to-day oversights or, you know, things that that all of us have done. I mean, I can see myself in so many of these stories, and I have, I think-we’ve talked about this before, I’ve totally changed my way of approaching the patient and documenting, based on my experiences here. 

So, this first case, there’s a few things that we can pull out of this case to learn from. And I always just want to be absolutely crystal clear that we are not here to judge anybody or cast aspersions. It’s really just to learn. It’s like, oh gosh, what did they used to call it? Oh, in the old episodes of Grey’s Anatomy, where they would go to, you know, all the residents and staff would go to Mortality Conference or something like that, like you go to conference like once a month and present the cases that did not go well in the hospital. 

And the whole point was just to learn from it so that it doesn’t happen again. And that’s the story here. So, a couple of points come out of this for all of us. See if you can pick them out along the way before we analyze at the end. So, this case is about a 39-year-old woman. 

Sounds so young now, 39-year-old woman. And she was seen in a women’s healthcare practice, by a family nurse practitioner. So, it’s an FNP functioning in a women’s healthcare specialty practice. And she performs this-it’s an initial visit. It’s a comprehensive women’s healthcare history and physical examination. The patient reported a medical history significant only for migraines. 

And she was taking sumatriptan at the time. She denied any other significant medical history. Of note, is that in the detailed history that was recorded by the NP for this first visit, there were no risk factors for breast cancer identified, which, of course, is a big thing in a women’s healthcare setting when you do a comprehensive wellness exam for a woman of childbearing age, right? 

You do specifically note the presence or absence of risk factors for something so relevant. And the entire history-and it was a detailed history-revealed virtually no risk factors for breast cancer, you know, personal risk factors or family history, anything like that. And this was all specifically addressed like denied any family history, mom, sisters, etc. 

So, the patient herself specifically denied any personal symptoms. She denied a personal history of cancer, breast, genitals, just a very normal 39-year-old healthy patient who had migraines. On physical examination she was not overweight. She did not smoke. She did not use alcohol. No significant hormonal contraceptive use. There was a note that at some point in the remote past, she had used hormonal contraception for about 6 months. 

And I’m highlighting these things because they are all risk factors for breast cancer, which you might imagine is coming down the line here, you know, but that the H&P specifically addressed and excluded these as risk factors. The patient denied any specific complaints. Her physical examination was documented within normal limits, and the chart note documents that the patient was due for a mammogram in a year. 

You know, when she turned 40, it was advised that that’s when she had her first mammogram. And so that was the content of that first visit. And that was, we’ll say, in April of the relevant year. Three months later in July-May, June, July. I do what all good academics do: count with my fingers. 

May, June, July. The patient came into the women’s healthcare office for an acute-she had an acute complaint. Her symptoms were consistent with vaginal candidiasis. She had an examination, you know, that revealed fungus in the vault. And so, she was given a vaginal insert, topical antifungal, you know, again, very typical in a healthcare visit. 

Two months after that, in September, she came back for an annual examination. Not 2 months-a year and 2 months after that. So, this is the next year. So it’s been about a year and a half. The first intake that I mentioned was April of year one. This is September of year two. So, she comes in for her annual examination. 

She reports-the patient reports-a left breast lump that she had been able to feel for the last few months. And then she said she accidentally hit her left breast a few days prior to this visit. And now it hurts. The NP records a physical examination and documents two palpable lumps in the left breast in the upper outer quadrant, a diagnostic mammogram and ultrasound are ordered. 

The mammogram report reads, and I’ll quote a few things here: “Dense stromal tissue is noted involving both breasts, which limits the sensitivity of the examination.” And we know that dense breasts do limit the sensitivity. “Scattered microcalcifications are noted involving both breasts.” And, you know, microcalcifications as a comment always catches your attention. They, in certain circumstances, are suggestive of a malignancy. 

But it depends on the character and the distribution. I mean, lots of women will have diffuse, scattered, small microcalcifications, and it’s a totally benign finding. I did look up the stat before we came to talk about it today. Overall, microcalcifications are generally correlated with breast cancer at about 25%, which means 75% are not. And then the character of the calcifications and the patient history are also informative. 

Like, you know, if they’re less than 0.5 centimeters (cm), that tends to be less concerning. You know that that kind of thing. In this case, these scattered microcalcifications with no other concerning findings and no history of concern, the patient’s not at high risk or anything in and of themselves, that’s not especially concerning. They were also visualized on a comparison study that had been done in 2000. 

Well, had been done 4 years prior. I don’t want to give away too much identifying detail here, but 4 years prior the patient had a mammogram of record and the look was it was unchanged. So, you know, really nothing to be especially concerned about on that read. “No discrete nodule was seen on the present study. There was no secondary evidence of malignancy, such as retraction of the nipple or skin thickening.” 

This was all on the mammogram report. So, it is a benign mammogram unchanged from 4 years prior. The impression noted by the radiologist was “extremely dense stromal tissue involving both breasts, which limits the sensitivity of the exam. Scattered microcalcifications are noted, involving both breasts, were seen on the prior study.” It was read as category two, which is a benign finding. 

And that was it. There was no recommendation for further study, no recommendations for follow-ups or frequent mammograms or anything like that. And I’m perseverating on this a little bit, because when we see these reports and we do see them all the time, if you manage women of this age, these kind of reports, you know, come across your computer screen all the time and it’s easy to become desensitized to some of these routine benign things like, yes, dense stromal tissue is not uncommon. 

And they always say it limits the sensitivity of the exam. And it does. And we do want to remember that the sensitivity of the exam is limited. It goes along with that general notion of diagnostic studies are a tool, but they’re not the be all, end all. You know, they’re one piece of the story. And so, we have to be careful about relying on them too heavily despite maybe some physical findings to the contrary. 

So, like these are phrases that NPs that do this kind of work every day-scattered microcalcifications, prior study by rads too dense tissue. You see this stuff all the time. And you do I mean, it sounds like we’re finding that are not worrisome. We will repeat the mammogram in a year. And so, they did actually notice a small cyst in the 2:00 position. 

An ultrasound was done which they will often do, like for a diagnostic mammogram. The radiologist is what is looking at the results in real time. And if they see any little thing they will often, you know, do another view, you know. Additional views is the word I’m looking for and an ultrasound if necessary. And that was done. 

And it was read as like a 0.5 millimeter (mm) cyst or 0.5 cm cyst and was benign. So, the patient was called with the results of these studies, and she was advised to follow up in a year.  

JA: Right.  

SM: So, this was in this was in September. And then she got the call in October of this same year. 

And she was advised to follow up in a year. A month later, actually, like 3 weeks later, the patient called the clinic back and she was concerned about the cyst that had been identified by ultrasound. And so, the NP said she would discuss it with the collaborating physician and, you know, respond to the patient. So, the NP did discuss it with the collaborating physician and the collaborating physician, according to the documentation, looked at the radiologist report and the collaborating physician advised that the radiologist was not concerned. 

But if the patient was concerned, she should get a second opinion from a breast surgeon. So that was communicated from the NP to the patient. The patient decided not to follow up at that time.  

JA: Okay.  

SM: No, she just said, “Okay.” Well, she didn’t pursue it any further. So, we’re all together here so far. The very first exam a year and a half ago, the history was very benign. 

Everything was very benign and, you know, advised to get a mammogram in a year. Like a year and a half, a year and 5 months later, the patient comes back for her next check-up. There are no meaningful changes in history documented. I mean, I didn’t list every single thing it might seem like I did, but I do editorialize here for relevance. 

You know, the background, the review of the history. It was all unchanged. So now it’s time to have a mammogram. She’s 40. There was this: the NP noted two palpable lumps in the left breast. And remember, the patient said she had noticed it a few months ago, and then she bumped it and it hurt. 

So, the NP appreciates the palpation. She gets the mammogram. And that’s the result. And so, the patient decides not to follow up. Four months later, the chart notes indicate that the patient called to request an order for Diflucan. So apparently, she had another yeast infection. There was no comment in the phone call, notes about concerns of the breast. 

The next November, a year later, it’s time for her next annual exam. So, we went from April of year one to September of year two, and now it’s November of year three. So, she is coming back more or less than a year, you know, for annual exams.  

JA: Yeah.  

SM: Now she comes back and she’s for an annual exam. 

She reports that her left breast seems to be bigger and hurt more. Now this is the one that hurt 14 months ago and had the palpable lumps. And she did the mammogram and all of that. So now it seems to be bigger and it hurts more. Physical examination by the nurse practitioner documents a large, palpable cyst in the upper outer quadrant of the left breast. 

This is the same, you know, place as before. Diagnostic mammogram and ultrasound are ordered in November of year three. The patient is not seen in the clinic again.  

JA: Is not seen? 

SM: Because the mammogram and the ultrasound that she had that were ordered this time, revealed a mass in the left upper quadrant. Ultrasound the same day reported BI-RADS 4, which is suspicious for malignancy. 

A biopsy was done very quickly and the patient was diagnosed with metastatic malignancy of the left breast. The MRI demonstrated a 7.2 cm mass, 7.2 cm mass.  

JA: Seven!? 

SM: I was going to say that’s almost as big as my entire breast: 7.2cm mass.  

JA: Oh my gosh.  
 
SM: So, the patient had, of course, a bilateral mastectomy, and significant reconstruction. So, she was not seen in that clinic again because she felt that her care in that clinic had not been aggressive enough. 

And so, she, you know, saw another provider. And then, as she went through the course of her treatment, she saw different providers and then, you know, then she initiated her lawsuit.  

JA: Oh, my.  

SM: So, logically, the, you know, the assertions are that the nurse practitioner did not follow up aggressively enough after that first mammogram that was done in year two. 

Remember, we had baseline year one and then year two, and then year three was when she had the mammogram that prompted this diagnosis. So, 14 months prior to that, the NP documented two palpable lumps. The patient had a mammogram, you know, the microcalcifications unchanged, a small cyst that was less than half a centimeter. And that was it. 

And then patient called a month later, she asked about the cyst, and she was advised that the radiologist was not concerned, but if she wanted follow up, they would refer her to a breast surgeon. And she said no.  

JA: Wow. There’s a lot here. 

SM: It’s a sad story. Horrible story.  

JA: Right. And as you know, you might not know this alley, but I am 39 and just had my wellness visit like last week. 

So, this is quite timely. This is quite timely. So, wait a minute. Okay. That is awful. And what a huge growth from when you first report it was very teeny tiny little two masses. Not like a huge to do, but alright, so let me back up I have a first question. I remember when we podcasting before we had a not similar but kind of similar as far as diagnostics goes. 

And I remember you, I learned something new that day. We talked about the difference between there’s diagnostic and then there’s screening in that way. Right. And that’s a really important piece. But that density-that, it sounded like, that word sounds like it’s so dense I can’t see. So dense I can’t see. Maybe not a big deal. Like, is that the first place where things maybe could have been a little bit different? 

SM: It’s a piece of it. I mean in-so I mean, it is true that hindsight is 20/20 Monday morning quarterbacks are the best all of that thing. And that’s just how we can learn from it. But yes, like we so often see these reports about dense breast limiting visibility.  

JA: Yeah.  

SM: That you can become desensitized to that.  

JA: Yeah. 

SM: But we want to try not to become desensitized to that. Because what that tells us is that visibility is limited. Now listen, limited from one radiologist could mean something else to the other, but it does clearly communicate that it’s not perfect. You know that these are not 100% sensitive testings. So, we can’t just assume that because something is read as negative, it’s negative. 

And that’s the first piece that we all have to remember. I see-I mean, I see this all the time where clinicians rely so heavily on radiographic imaging that it’s like, well, you know, this is negative. So, what was I supposed to do? How was I, you know, how was I supposed to know there was anything wrong? 

JA: Yeah.  

SM: And I mean, you know, one school of thought says, well, you know, shouldn’t we be able to rely on diagnostic imaging? And the answer is, of course we utilize it. I mean, yes, we should be able to rely on it and draw some conclusions. But when the radiologist tells us that the sensitivity is limited, and that can happen in any study for any number of reasons, that the study is limited. In the case of mammograms, they are often limited because of dense tissue. 

So, I mean, the takeaway for me is you can’t just assume that is the story if there’s other things clinically that don’t make sense. And in a circumstance like this, the NP documented palpable lumps.  

JA: Yes.  

SM: And the general approach to, you know, size and evaluation is like, you know, any evidence-based reference will tell you that you can’t palpate anything under 1 centimeter. 

It’s just not palpable within the confines of breast tissue. So, one of the things for all of us to consider is the mammogram reported a like 0.5 cm nodule that the ultrasound was negative for, that doesn’t really correlate with what was palpated because- 

JA: So you have to be bigger to feel it is what you’re saying. 

SM: Yeah. And the NP documented too. Right. And the image revealed one small one. And so, what you’ve got right off the top of your head is a physical finding that is not consistent with the imaging.  

JA: Wow. And so, what is the right-I don’t want to say “right” because here we are like Monday morning quarterbacking. Right. 

But like if you find that inconsistency, if you happen to know that inconsistency-wait a minute. This is really not diagnostic but I can feel it when I’m touching it. What would be the recommended next step then if the diagnostic didn’t catch it. But you’re feeling it and you know I can’t feel something that small. 

SM: It really does come back to, you know, safety first.  

JA: Yeah.  

SM: And so, when you have two findings that conflict you need to pursue the more concerning one.  

JA: Yeah.  

SM: You know when you have one you have two different choices. And one is more concerning and can be potentially more, you know, catastrophic. 

And the other one is more benign. You’ve got to you got to pursue that one. You’ve got to make sure that it’s not dangerous. And so palpable. I’m saying, like I said, I look at myself in these cases and I go, oh man, palpable lumps. The patient just told me she just hit it. You know, maybe it was just a little hematoma- 

JA: You know, like you can have trauma or something, like- 

SM: Yeah, a little trauma thing. And by the time she actually had the mammogram a few weeks later that had resolved.  

JA: Yeah.  

SM: You know, I mean, any of us could have that thought process because there is this tendency, like, the lady had no risk factors at all. She was 39. She had no history. She had no contraceptive used. 

She didn’t smoke, she didn’t drink, she wasn’t overweight. All these things that are risk factors for breast cancer, none of them were there. So, I think any of us would have a tendency to think that a palpable lump after she told us she just hit it- 

JA: Right.  

SM: In conjunction with a negative mammogram a couple weeks later, any one of us could reasonably think that, ‘Oh well, it was probably just a transient inflammation after a hit’ 

JA: Oh my gosh.  

SM: Now, now as Monday morning quarterbacks will go back and say, ‘Well remember the patient.’ Yeah. She said she just hit it a few days ago. But she noticed the lump a few months ago.  

JA: Right.  

SM: And that-right. So, you know again the Monday morning quarterback. So that’s one thing. The other thing that I think is worth highlighting here, for all of us who read about it, is that this is a family nurse practitioner working in a specialty setting. 

And there’s some implications there. Like, it’s all fine until something goes wrong. And then when something like this goes wrong, I mean, listen, the plaintiff’s attorneys job is to get a settlement for that patient. So, they’re going to look at whatever they can look at to be critical of the care and demonstrate that it’s a deviation from standard of care. 

And having a family nurse practitioner work in a specialty setting is a target. Now, please, all the FNPs listening. Don’t you know, throw tomatoes at me? I know, I mean, I for years worked in specialties as, as a family or, you know, a, like, adult primary acute care nurse practitioner. It is even still to this day-like I for a totally different reason, a few months ago, I was looking at stats of the number of employees working in acute care who are actually family nurse practitioners, and it’s still more than 50%.  

JA: Wow.  

SM: More than half the nurse-yeah, more than half the nurses practicing as an acute care NP are family nurse practitioners because, you know, the whole specialty thing is a fairly recent evolution in our world. 

I mean, for decades, FNP, FNP or PNP, those were the choices you had. And the whole specialty thing has evolved like comparatively, fairly recently, you know, I mean, recently you lose perspective here. I mean, the first acute care NP exam was-when was it? Like I think it was in the year 2000, I took the first one offered ever. 

It was December, I think it was early 2000. So, I guess we’re going back 25 years now. But anyways, like, you know, for 40 some years we had FNP and PNP and then then the specialties really started to take off. And now it’s very, you know, it’s very common. So the only thing I would say to any FNP working in a specialty setting is that you do want to be very sure that if something like this ever happens, you can clearly substantiate your experience and education that makes it suitable for you to work in that setting because it’s going to be a target. 

We saw a lot of this in the acute care setting. It’s I mean, I really think it’s one of the big reasons that hospitals have become more insistent upon an acute care certification.  

JA: Yeah.  
 
SM: Because, you know, because it’s a target of malpractice. And when the hospitals are liable for a settlement, like, why didn’t you require that the NP was certified appropriately? 

Like, that’s how we saw the acute care role really become utilized is when malpractice cases and settlements forced hospitals to be more vigilant about that. So, I just you know, just as something to learn from this. You know, we have we have specialists that work-we have family nurse practitioners that work in all sorts of specialty settings and are amazing at it. 

But if something ever goes wrong, it’s going to be one of the first things that the plaintiff’s attorneys go after. So, you just want to be able to clearly, you know, substantiate your, like I said, experience and education to work in that setting. So, that’s something else to keep in mind. And I think the case that we talked about before, the one that you referred to, was also a family nurse practitioner working in women’s health, and she didn’t know the difference between a screening and a diagnostic mammogram. 

JA: Right. That’s what it was. There was two different types of like diagnostic or imaging that you can do there.  

SM: I mean, even if an FNP doesn’t know the difference between the two. And now, I mean, we’re just getting better in the educational setting as well. So, I expect most FNPs do know the difference, but if they didn’t, one might make the argument, well, you know, when it gets to be problematic and needing a diagnostics, maybe referring to women’s health, but anybody would expect an NP practicing in the women’s healthcare setting to know the difference. 

But in this case a diagnostic was ordered, so that was okay. That’s not the issue. But the business of you have the radiographic report and you have the clinical examination. And you know the patient history. They’re discordant there. And when they’re discordant we’re best-served to pursue the one that could be more dangerous and rule it out. 

So, you know in hindsight that’s something that-and even if it was, even if it’s just ruled out by way of history, it could very well be that the NP did ask further questions about those lumps that she palpated, and she got answers that made her confident that it was benign, but didn’t write it in her note. 

So, another, you know, another ping to documentation.  

JA: And I wonder too, you brought up about the Candida. I heard you bring that up twice. I was just curious, like, is that something that was significant to this particular case?  

SM: No, only in that the patient was in contact with the practice a couple of times and didn’t express any other concerns, didn’t say, ‘Oh, and hey, by the way, like, you know, that thing in my breast is just getting bigger and bigger.’ 

So, you know, the patient didn’t offer any new concerns. And so, it’s not unreasonable to assume there were no new concerns.  

JA: Right. And I hate to say this, but I wonder, did in this case-did the fact that the providers, when they said, ‘Hey, like this doesn’t seem like the big to do, but if you want to get a second opinion, go do that.’ 

And the patient choosing not to do that, did that have any bearing on the actual case?  

SM: Sure. Because, I mean, maybe not the patient’s outcome because the patient is an adult and will do what she wants to do. But this is another one of those times where, you know, we’re the professional and they’re the laypeople. And if we know what the patient should do and they don’t want to do it, that’s up to the patient after informed decision-making. 

But it’s our responsibility to make sure that they are informed. And if they choose to act against our advice, we document that as well. So again, in this circumstance where you have these palpable lumps-  

JA: Yeah.  

SM: And they’ve been there for a couple months and the ultrasound and the mammogram, which clearly says our visibility is limited due to dense stromal tissue. 

It doesn’t find them at all. I mean, you wonder how-I don’t know how. I don’t know because I’m not a radiologist. I have no idea how something can be there and it gets missed. But there’s just technique, you know, mammograms, I mean, they’re not you know, sometimes they’re not-the technique is not great. Or there’s 100 reasons. 

And believe me, the radiologist in this, the radiologist who read that in this case that was a whole separate target of the malpractice action. So, there’s that. It’s very possible that it just wasn’t read well. So, and that’s that. So, with the NP, the question really is how much do we rely on it? 

And you know, we all have to decide for ourselves. You have physical findings that are discordant with the mammogram. We are advised that the mammogram has limited visibility. And we know that those lumps could be dangerous, like of the two, the benign mammogram or the lumps, which one concerns you more? Lumps. Not a whole, whole lot. Because she’s young, she has no history. 

She has no risk factors, no nothing. But okay, so then, especially when the patient calls back, and she’s concerned, I mean, a purist would say that at the time of the ultrasound report that the best practice approach to the patient would have been to say, ‘The ultrasound didn’t identify anything. And that’s good news. But it doesn’t explain these lumps. 

I’m going to refer you to a breast surgeon.’  

JA: Yeah.  

SM: Or for an MRI or something else, a more definitive study. It should have been-it really shouldn’t have been offered as an option. It should have been advised as the next step in care, and it should have been presented to her that way. And then if she chose not to do it, it should have been documented that way. 

And again, like I-when these things come out of my mouth, I want to make so sure that nobody is getting a criticism from this because I could see myself doing it at one time. I don’t do it now. I see myself at one time. Well, I offered it to her and she said, no, you know, she’s an adult, but we’re the pros and they’re not. 

And we’re expected to know the things like that mammogram didn’t correlate with that physical finding. The patient doesn’t know that, we do. And so, we have we have to take a firmer stance here. And so really the best move here would have been number one, if you tell the patient, ‘Look, you need to see a breast surgeon. 

We need to figure out what these lumps are.’ The patient’s more inclined to do it. You know like when they don’t like people always hear things through their own filter. Here I go, being all psych NP on you again. But we always hear things through our own filter. So, a 39-year-old woman has lumps. It’s scary. 

She’s scared. You know, breast cancer is the leading cause of cancer in women. It’s scary. So, then she has this study that’s negative, right? You know, she got it on paper. You know she has a copy of it. It’s like oh look, this you know, not concerning come back in a year. And then we say, ‘Well that’s great but I’m worried about this.’ 

JA: Right.  

SM: And then the patient’s as well. Couldn’t this have been from when I bumped it. You know, how about if I just wait and see what happens if we say, ‘Well, it’s up to you,’ the patient will interpret that as our stamp of approval not to follow up on that.  

JA: Right. Like it’s not that serious. You didn’t say go do it.  

SM: Right. Right. But if we say, ‘No, look, it’s really best. You are young. There’s no extensive abnormality here. If there’s something that needs to be treated, it’s early. We’ll find it early. You know, great outcomes, but you need to see a breast surgeon.’ And you write it down that way and give her the referral. And then if she chooses not to go, it’s on her. 

JA: Yeah.  

SM: So, you know, but again, it’s Monday morning quarterbacking 100%. It’s why I really have learned never to be like compromising like that. If I think a patient needs to do something and they don’t want to do it, I said, ‘Look, I can’t support that. I can’t tell you that that’s the right way.’ 

So, I think and then I write it down in my notes. So, that’s another real takeaway from this. And I mean, I really-I think the biggest ones and I mean, there’s a 7.2 cm mass. So, obviously the most of it was way down inside. But keep in mind that was 14 months later. Like the difference between the two palpable lumps and the benign mammogram was year two and the 7.2 cm mass was found in year three. 

Fourteen months later. So, had the care been more aggressive or a breast surgeon been consulted in the year two- 

JA: Or year one, right.  

SM: You know, the patient may have had a really a different outcome. So, I mean, I think the takeaways from this one. Oh, and there’s one more thing I wanted to mention. I forgot the patient denied any significant medical history upon repeated questioning. 

But the patient also had some apparently poorly treated mental health issues or maybe an unidentified like personality disorder. And as it turns out, she had a sister with breast cancer.   

JA: Oh my gosh.  

SM: That didn’t become apparent until-that’s-so she had her cancer. But this said, you know, but again, we see things through our own filter. 

So, this in retrospect, like in the patient’s deposition, this was why she called a few times. Remember she called back 2 months later, wanted to talk about the cyst. And yeah, you know, she knew her sister had breast cancer and that clearly was on her brain. But, you know, listen, when those two things are going on in your head, you don’t always think logically and-but yeah, she didn’t-she admitted that she didn’t share in her initial history breast cancer because she didn’t want to talk about the breast cancer. 

She didn’t want to talk about it. So, nobody knew. So, that like, that was really good work for the NP to clearly document that the patient specifically denied that family history.  

JA: Wow.  

SM: Unfortunately, had the patient admitted it early on, no doubt the approach to those two lumps in year two would have been much more aggressive.  

SM: Yeah, and I know that totally sounds like hindsight, but I mean, honestly, that’s such a big, significant finding because it this is one of those questions that you asked for that reason to screen. 

Oh my goodness. Okay. This one’s hard. I have to be honest. At first I’m like plaintiff, plaintiff, plaintiff. Then I was like, oh no, no, no, no. Defense. Defense. Oh plaintiff. Wait a minute, defense. Now I’m back. Now I’m think I’m back on defense.  

SM: Good, that means I didn’t give away the farm here. I was retained by the defense. 

JA: Okay.  

SM: I was retained by the defense in this case. Now, I mean, you know, I do-like, I had discussions with the attorney before anything gets put, you know, in writing and stuff like that. And the question is not, What’s perfect practice?’ The question is, ‘What is the standard of care? What would another nurse practitioner with similar training experience, etc. do in the same or similar circumstances?’ 

And I mean, you know, remember that she consulted with the collaborating physician and the collaborating physician offered this advice, and this was at a time in a state that still required a collaborating physician. So, the NP was not an independent provider. Listen, I’m sure that there are some people listening going, it doesn’t matter whether she’s independent or not. 

She should have told this NP. I mean, like that’s where the-that’s where I think, ‘Wow. Well, you know, some people never make mistakes and the rest of us do,’ but like, in an actual day-to-day life and even still, there are plenty of NPs that work in independent states. But work in practice environments where the physicians really do call the shots or take the dominant, you know, the dominant clinical judgment and stuff like that. 

And that was reportedly the case in this circumstance. But, you know, the bottom line is the patient, by not providing that information and purposefully, knowingly not providing that information early on, you know, really does have some culpability here in directing the care. Because like I said to the attorney, we only had the information in front of us to work with. 

JA: Right.  

SM: And there was virtually no risk factors for breast cancer. There was, you know, a normal mammogram.  

JA: Right.  

SM: And like I said, in retrospect, yeah, in retrospect, we could say, ‘Oh, what about this and this?’ But you can see how the brain goes, ‘Oh, now she had those lumps by. Oh, she said she hit it.’ 

Well, you know, this is you know, you could just see yourself going down that trajectory. So, there’s like-I don’t know, I think it’ll be a lesson for everybody listening from both a plaintiff and a defense perspective. I know I did learn a lot of things from this case. I mean, a big one is it just reinforced that notion. 

I will always tell patients what I think they need to do, and I will not support a less aggressive position if I think it’s unsafe. And if they don’t want to do it, I’m very clear in my documentation because if, God forbid, anything bad happens, I want to protect myself. But also I’ve learned more in psych than anywhere else. 

I’ve learned that if you just-they want you to support their position. And we can’t do that because their position is a product of what’s going on in their head. And when you think something’s wrong or you’re scared, your brain processes it in a different way. You want to rationalize to yourself that it’s alright.  

JA: Yeah. 

SM: And then finally, always-I know I’ve said this in other cases, too-whether it’s a lab test or imaging or any other objective tool or even two conflicting physical findings, you can’t just throw your whole judgment or your whole trust, I guess is the better word, on the diagnostic study. 

There’s lots of times where they just don’t find something.  

JA: Yeah. Wow. I mean, I think that that’s a really big takeaway, Dr. Miller. I think, you know, be firm, you know, be firm. And what is it you’re telling your patients? Because in essence, right. Like that is you advocating that is you have. Yeah. Like nice and like, alright. 

Do what you want to do. I’m your buddy. But like, truly advocate for them in that way. If you think that there’s something wrong, act on that. Wow. Can you tell us, you know, before we wrap, Dr. Miller, what was the outcome for the patient in this case?  

SM: I mean, the patient did get a get a settlement. I mean, the real thing that was contested here was the quality of the radiographic interpretation.  

JA: Yeah.  

SM: You know, I mean, there was everybody, the physician, the NP, like everybody’s insurer had to contribute to the settlement. But the real issue that was identified later was the quality of the interpretation of the radiographic, you know, the mammogram. And the patient, I mean, this this was a few years back, the patient, the last I heard at the conclusion she was she was alive, but she had had to have a bilateral mastectomy. 

And then, of course, aggressive chemo and reconstruction and stuff like that.  

JA: Oh my gosh. There is a lot to learn there, Dr. Miller, thank you so much for sharing this story.  

SM: You’re welcome and happy 39th.  

JA: Yeah, thanks. We don’t know if everyone enjoyed listening to this but I learned a lot, I certainly did. There was a lot of takeaways from this. 

I hope you’re carrying this, you know, with you in your practice and doing awesome things like we know you are. And if you enjoyed this episode and others, please check out FHEA.com. We got a lot more good stuff there for you. In the meantime, we will see you again. But goodbye for now. 

Voiceover: Thank you for listening and learning with Scrubs and Subpoenas: Tales from the Witness Stand presented by Fitzgerald Health Education Associates. Please rate, review, and subscribe to this podcast, and for more NP resources, visit FHEA.com. Join us again next time as we dissect more medical malpractice cases.