Failure to Diagnose Male Breast Cancer

$2,225,000 RECOVERY AT JURY SELECTION

Family Physicians failed to investigate the presence of a unilateral inverted nipple for at least four years.

Rockland County, NY 



This case involved a plaintiff who had been a patient of the defendant family practice for many years undergoing routine physical exams every approximate six months. Plaintiff contended that the initial defendant, who had been his physician until going to a different practice negligently failed to investigate and ignored the sign of a unilaterally inverted left nipple – a red flag for breast cancer. The plaintiff further contended that when he first saw the second physician in May 2015 for a rash above the left nipple - which was a red flag for breast cancer – the physician negligently misdiagnosed him with ringworm.


The plaintiff would have maintained that the one nipple had been inverted since at least 2012 when photographs taken while on a cruise showed the inversion. The plaintiff contended that the nipple would have been in sight by the physician at least once every six months until he changed practices since this was the left nipple where the physician would have to place his stethoscope to listen to the patient’s heart at every visit and was therefore readily apparent for the physician to visualize. The plaintiff contended that this defendant failed to consider the inverted nipple as cancer. The plaintiff would have asserted that the failure to diagnosed breast cancer when it first presented deprived him of a chance for a total cure. 
The plaintiff would have maintained that there was still a substantial chance for successful treatment. when first saw the second defendant in May 2015 with complaints of a rash above the nipple. The second defendant diagnosed ringworm, gave him a cream and told him to return if there was no improvement. The plaintiff maintained that since there was some improvement from the cream, he did not return until he had a routine exam in December 2015. During that visit, the second defendant noted a normal breast exam. The plaintiff returned approximately one month later, complaining of severe back pain and asked the doctor to look at his nipple since it was black. The second defendant palpated a large mass behind his left nipple. Plaintiff underwent a sonogram that was followed by a mammogram that revealed the cancer. It was also determined that the cancer had spread to the lilac bone, the acetabulum, the proximal femur, the thoracic and lumbar spine. The plaintiff suffered a fracture to the femoral neck and needed a hip replacement and also suffered several lumbar compression fractures because of the metastasis. The plaintiff maintained that the metastasis to the bone causes especially severe pain. Plaintiff was 68 years old at the time of diagnosis.


The plaintiff asserted that once the cancer spread to the bone, there was a 0% chance of long term survival. The plaintiff continues to take chemotherapy, tamoxifen therapy and radiation treatments. The evidence also disclosed that the plaintiff developed a molar abscess and the cancer treatments rendered treatment of the molar abscess very difficult, irrespective of the administration of IV antibiotics. 
The defendants would have maintained that they did not note the inverted nipple because the plaintiff never took off his shirt at any of the office visits from 2012 until 2016. 
The plaintiff testified that he unbuttoned his shirt at every visit to be examined by the defendants. The plaintiff would have also argued that the records documented high level physical examinations that could not be possible if the patient did not remove his shirt. Further, performing such high level examinations with a shirt on would constitute deviations in and of itself.

The initial defendant had a $1,300,000 primary policy and a $1,000,000 excess policy. The second defendant had a $1,300,000 policy and no excess coverage. The case settled at jury section for the $1,300,000 primary policy from the first defendant, $387,500 from his excess carrier and $562,500 from the second defendant. The plaintiff's total recovery was $2,225,000. 

COMMENTARY

The plaintiff, who would have introduced photographs taken on a cruise in 2012 and others from 2014, all of which depicted the unilateral inverted nipple, would have had a very strong case, arguing that when he visited the defendants' practice for twice yearly routine physicals, the failure to consider male breast cancer in the fact of such a 
sign was clear deviations, notwithstanding evidence that reflected that the incidence of mail breast cancer of less than 1%. The defendants would have endeavored to defend the case by arguing that the plaintiff did not remove his shirt during the routine visits. The plaintiff who denied that this position was accurate, would have also argued that if the defendant had reported normal findings, the defendants had clearly deviated in conducting the exam without the shirt removed. The plaintiff settled the case for less than the coverage of the defendants. The consideration of having the plaintiff receive the funds as soon as possible was a significant factor.