He should have been more careful.

He knew better.

He was rushed that day.

He saw 35 patients that day.

About five minutes per patient.

Two to three minutes to record his observations in the patient’s electronic medical records

He had ten minutes to eat lunch.

He went to the bathroom only once during the day.

He took twelve phone calls, all from other physicians who had questions.

He squeezed in four patients who were ‘emergencies’ and had to be seen today.

By the end of his day, he was exhausted.

He felt good.

He had treated a lot of people.

He had helped many.

Some he could not help.

Some he prescribed medication.

To some, he gave words of comfort.

Many needed follow up tests.

He had his nurse give prescription forms for those tests.

Blood work.


MRI scans.


Referral to specialists.

He had just changed his office over to electronic medical records.

He used to be only paper records.

Handwritten progress notes.

Paper prescriptions.

Paper referrals to specialists.

It was so confusing to use the EMR, electronic record system.

He still didn’t have a tickler system.

A system to remind him to reach out to patients who didn’t follow up.

Patients who didn’t follow through with tests that were recommended.

A tickler system he should have had.

He’d heard about these tickler computer systems.

He’d learned about them at medical seminars.

He’d learned about them from his medical malpractice insurance company.

They all talked about the importance of having some type of tickler system.

It wasn’t high on his to-do list.

There were more important things to worry about…

Paying the mortgage.

Paying the lease on his Porsche.

Paying his kids private school tuition.

Paying the office rent.

Paying his employees.

Arguing with his partners.

A tickler system?

Not even on the radar.

Well, one of the patients he saw that day had a breast lump.

A lump that needed investigation.

A lump that could be cancerous.

It needed follow up.

This patient had been with him for years.

She trusted him.

She liked him.

He liked her.

But there was a problem.

She was not the most compliant patient.

He told her to do things.

Sometimes she would.

Sometimes she wouldn’t.

Not maliciously.

But because her life’s daily activities got in the way.

Her kids.

Her hair appointment.

Her friends.

Her trip to the mall.

She got busy.

Busy with little things.

He told her she needed a mammogram.

She hadn’t had one in a few years.

He told her she needed a breast sonogram.

She never had one.

He told her she needed to see a breast surgeon.

Someone who could properly evaluate her breast lump.

He would talk to her simply.

Using easy to understand words.

She was not the most sophisticated person.

She was a simple woman.

A private woman.

He told her she needed these tests done.

He told her she needed to see this specialist.

She told him she would.

She had good intentions.

But then life got in the way.

Those pesky tests didn’t really seem that important.

The breast sonogram she had done right away.

That was a new test.

She figured if that was Ok, she probably didn’t need the mammogram.

If her breast sonogram was Ok, she probably didn’t need to see a breast surgeon.

That was her thinking.

She didn’t share that with him though.

To be fair, he didn’t tell her to follow up with him after these tests.

He didn’t say he’d be in touch with her to discuss her test results.

He didn’t say anything actually, other than “I want you to have these tests done.”

Months went by.

He forgot about her.

He forgot about the tests he recommended for her.

He forgot about her non-compliance.

He had other patients to see.

He saw 35 patients the next day.

He saw 33 patients the day after.

He saw 40 patients the day after that.

And that’s how it went, five days a week.

Week after week.

Month after month.

He didn’t know if she went for those tests.

He never saw any test results he had recommended.

He had no tickler system.

He had no follow up system.

He had no way to know whether she went for his recommended tests and referral to the breast surgeon.

She was ‘lost to follow up’ is the phrase his office used when a patient didn’t return after being told to.

He didn’t have time to recheck his patient notes.

He saw hundreds of patients a month.

He had no way to know which of his patients did what he told them to do.

He had no clue if they followed up with their tests.

The only time he’d know is if he got test results on his desk.

Or the patient returned for follow up.

Or one of his partners spoke to him about his patient.

Or the patient was in the hospital and he needed to make rounds on them.

That’s it.

No tickler system for him.

It’s not that he didn’t worry about his patients.

He did.

It’s not that he didn’t care about his patients.

He did.

It’s just that he had no time to follow up.

He had no technology to follow up.

He had nothing to help him learn if his patients went for their tests.

A year and a half went by.

He didn’t see her in a year and a half.

She finally returned.

She complained that her breast lump was now huge.

It was discolored.

Her breast was misshaped.

It was leaking fluid.

Looking at his notes from her last visit, he asked her some basic questions…

“Did you go for that breast sonogram I told you to do?”


“What did they say?”

“It’s normal.”

Looking at his EMR notes, his partner signed off on this sonogram report.

“Did you go for that mammogram?”

“No. You didn’t tell me that I needed that too. I only heard you say that if the breast sonogram was normal then I didn’t need the mammogram.”

“Ugh. That’s not what I said. I said you need a mammogram too.”

“That’s NOT what you told me,” she replied.

“Did you go to the breast surgeon like I told you to do?”


“Why not?”
“He didn’t take my insurance. Also, since my breast sonogram was normal, why would I need to pay a specialist out of pocket for a visit? You didn’t tell me I absolutely needed to see him. You didn’t tell me I could see someone else.”

“UGH! I DID tell you to see him. If not him, then another breast surgeon to evaluate that lump.”

“Well, now you have a problem. Your lump has grown. You need a breast surgery evaluation and biopsy immediately.”

Days later, she was diagnosed with invasive breast cancer.

Cancer that was present a year and a half earlier.

Cancer that has now spread.

Throughout her body.

Her prognosis is poor.

She’s going to have an immediate double mastectomy.

Then she’ll need weeks of chemotherapy.

Her breast surgeon does not recommend radiation therapy at this point.

She asks about her prognosis.

“Not good,” her surgeon tells her.

“It’s gone into your lymph nodes.”

“It’s gone to your liver and your lungs.”

He estimates she has six months to a year left.

She’s devastated.

She can’t understand how this happened.

She knows she told her primary care doctor about this lump more than a year and a half ago.

He should have done something.

He should have sent her for tests.

He should have sent her to a specialist.

Her surgeon says she would have been at Stage I or Stage II if this had been detected earlier when she originally complained of her breast lump.

Her treatment would have most likely prevented the spread of cancer to her other organs.

She’s angry.

Her husband is angry.

Her surgeon doesn’t understand why her primary care doctor didn’t send her out for testing.

He doesn’t understand why she wasn’t sent for a breast surgery evaluation.

He never got her primary care records to review.

He simply relied on the patient’s story.

He relied on the patient’s history.

He never spoke to the primary care doctor.

As she’s getting sicker and sicker she decides she wants to sue her primary care doctor.

For failing to diagnose her cancer.

For failing to refer her out to a specialist.

For failing to follow up and see if she went for tests.

For failing to make sure she had a breast surgery evaluation and biopsy.

A well-known medical malpractice attorney in New York accepted her case.

He had a prominent medical expert review her records.

He determined that her primary care doctor violated the basic standards of care.

As a result of those violations, she was deprived of life-saving medical treatment.

As a result, her life is almost over.

Significantly shorter than it would have been had this been detected and treated earlier.

When he got the lawsuit papers he couldn’t believe she sued him.

For malpractice!

He was so good to her.

He spent so much time with her.

He knew he forgot about her after he saw her for her original complaint of a breast lump but there’s only so much he can do with patients.

He can’t lead every patient by the hand to see a specialist.

Nor can he check on every patient to see if they went for tests he recommended.

There’s only so much he can do.

He sent the lawsuit papers on to his medical malpractice insurance company.

They’d assign a defense lawyer to him to represent him in this case.

They’d also meet with him to review this patient’s records and her claim.

An insurance company rep met with him two weeks later.

She wrote up a detailed report.

She forwarded her report along with the lawsuit papers and the patient’s medical records to their in-house medical expert for review and evaluation.

This in-house medical experts’ evaluation would set the tone for this case.

Was it defensible?

Did the doctor do what he should have done?

Was this case indefensible?

Did he screw up?

Did his carelessness cause this patient harm?

How badly was she hurt here?

The in-house doctor finished his review four weeks later.

By this time he’d been assigned an experienced defense attorney at a prominent New York City medical malpractice law firm.

The in-house medical expert said he did lots of things correctly.

He immediately told the patient to get a breast sonogram.

He told the patient to have a mammogram.

He sent the patient to a breast specialist.

Those were all appropriate.

That’s what he should have done and did.

But here’s the problem…

You didn’t follow up.

You knew this patient was non-compliant.

You didn’t know if she went for her testing.

You didn’t know what the results were.

You knew this lump could be cancer.

You knew that if it was cancer and not treated promptly, her cancer could spread.

You knew this.

Where was your tickler system?

Where was your follow up system?

Where was your notebook to follow up with problem patients?

Yes, yes, we know you can lead a horse to water but can’t make it drink.

That’s nice, but a jury won’t care.

A jury will only look to see whether you followed up.

You didn’t call the patient to follow up.

Your office didn’t send a post card to tell her to return.

You didn’t tell her to return.

Nobody from your office called her to follow up or return to your office.

She was lost to follow up.

“Sorry, that just doesn’t fly.”

“You should have known better,” they said.

Had you followed up, you’d have learned she didn’t have the mammogram.

You’d have learned she didn’t go for a breast surgery evaluation.

You’d have learned she didn’t get a biopsy.

A jury will not forgive you for that.

Our expert says your treatment is indefensible.

“But what about the patient? Doesn’t she have a duty and an obligation to follow through with what I tell her to do?”

“Of course she does. A jury may find that she is also partially at fault for her delay in diagnosis. However, the first question they will answer is whether YOUR treatment violated the basic standard of care. In this case, our expert has said yes, it did.”

His insurance company said it would be in their best interests to try and settle this case quickly.

She’s going to die.

If she dies, there’s an emotional component here too.

If she’s still alive by the time this case gets to trial, she’ll be extremely sympathetic as a witness.

If they try and negotiate now, they can try and limit the settlement amount and get rid of this case as soon as possible.

He still thought he did nothing wrong.

He felt he gave her good medical care.

He did the right thing.

But he didn’t follow up.

He forgot about her.

He forgot about her tests.

He forgot about her breast lump.

Now, his insurance company was telling him they were going to settle.

He’d have no chance at trial.

They wanted to fry him all because he didn’t have a tickler system.

“Damn that tickler system! Why didn’t I pay more attention to that when I first heard about it years ago?”

To learn about a failure to diagnose breast cancer case involving a young woman, I invite you to watch the quick video below...


Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer