Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.
The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.
After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.
The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.
One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.
The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.
The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.
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