Did Woman Give Permission for Breast Exam?

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.

Continue for outcome >>

Outcome
According to a published account, a defense verdict was returned.

Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.

As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.

Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.

When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.

Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.

Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.

Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML                       

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.

Continue for outcome >>

Outcome
According to a published account, a defense verdict was returned.

Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.

As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.

Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.

When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.

Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.

Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.

Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML                       

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.

Continue for outcome >>

Outcome
According to a published account, a defense verdict was returned.

Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.

As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.

Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.

When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.

Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.

Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.

Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML