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$600,000 Settlement for Medical Malpractice - Failure to Diagnose Breast Cancer

In December 1992, the decedent, a 29-year-old nurse, was seen by the defendant nurse practitioner for a physical examination. The decedent contended that at that visit, she pointed out a firm lump in her right breast to the defendant, which the defendant indicated was fibrocystic breasts. The medical record contained no reference to the alleged complaint.

The defendant admitted that she performed a breast examination at that visit. She claimed that given the absence of the alleged complaint of a lump in the records, she believed that the breast examination was normal. The defendant further contended that had the decedent reported a lump, the defendant would have recorded it in the record.

The decedent testified that the following year, she noticed that the lump was larger. In April 1994, the decedent saw the defendant nurse practitioner again for an unrelated office visit. The decedent contended that at that visit, she asked the defendant about the lump. The defendant nurse practitioner testified that no complaints regarding a lump were raised at that visit, and that she did not even perform a breast examination at that visit. There was no reference to the alleged complaint or to a breast examination in the medical record.

The following month the decedent discovered that the lump was noticeably tender when touched. The decedent asked a nurse practitioner co-worker to examine the decedent's right breast, and a large lump was discovered. Evaluation and biopsy were performed revealing breast cancer, which had already spread to the lymph nodes.

The decedent testified at the time of diagnosis, she suspected that someone had missed following up on the mass, but her suspicions were put to rest in 1995 when she contacted a family friend attorney who advised her that there "wasn't anything there."

The decedent testified in 1998, for the first time, following a conversation that her husband had with his own lawyer, the decedent learned that there was a possibility that her injuries were the result of some medical negligence. Shortly thereafter, in March 1998, the decedent filed claims for her personal injuries and her children's loss of consortium against the defendant nurse practitioner and the clinic where she worked.

The decedent died in January 1999, and the complaint was amended to add claims for wrongful death. The plaintiff alleged that the defendant nurse practitioner deviated from the standard of care in failing to follow-up on the decedent's complaints of a breast lump with further evaluation and testing, resulting in the decedent's injuries and death.

The defendant was expected to argue at trial that the decedent never complained of a breast lump. The breast examination in December 1992 was normal, and the decedent's breasts were not even examined at the time of the April 1994 visit.

The defendant moved for summary judgment arguing that the statute of limitations had expired prior to the time suit was filed in 1998, and because the decedent's claims were time barred, the remaining claims did not accrue.

The plaintiff opposed by arguing that the claims were not time barred because the discovery rule applied to the decedent's personal injury claims; the children's ante mortem consortium claims were filed within three years of the time the children suffered an appreciable loss of consortium and/or with regard to two of the three children, their claims were filed in accordance with the statute governing claims against health care providers by minors who were younger than 6 years old; and the wrongful death claim was filed prior to the expiration of the time period permitted by the statute.

The defendant's motion for summary judgment was denied.

The case settled for $600,000 following mediation.

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