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Note: Nascimento v. Harvard Community Health Plan and Kane was a trial that Court TV taped out of Cambridge, Mass. from October 9, 1997 to October 24, 1997. Below is a complete trial report including the verdict.
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Elayne Nascimento, who says she is dying of breast cancer, sued her doctor and Harvard Community Health Plan (HCHP) for allegedly delaying a biopsy that could have prevented her disease from becoming terminal.On October 24, 1997, a jury found Harvard Community Health Plan and the doctor, Elinor Kane, negligent in the deterioration of Nascimento's health. Nascimento and her two daughters, Ayla and Nia, were awarded over $1 million in damages. (Nascimento will receive $837,400; her daughters will receive $100,000 each for what the jury felt would be the inevitable, yet premature loss of their mother's companionship upon her death.)
Elayne Nascimento said Dr. Elinor Kane and HCHP were negligent when they did not perform a biopsy immediately when she first complained about a lump in her breast. (A biopsy is the removal and examination of tissue, cells or fluids from a living body.) Instead, a mammogram was performed, and the results of the mammogram showed no signs of breast cancer. However, over the next two years, Nascimento continued to detect the lump in her left breast. Nascimento did not receive a biopsy until two years after her initial visit, and the biopsy report described the lump as a "highly suspicious lesion." Further examination showed that the lump was cancerous and Nascimento underwent a mastectomy (the surgical removal of her left breast).
Nonetheless, Nascimento's claimed her problems did not end with the mastectomy. Her cancer had spread to six lymph nodes, requiring exhaustive chemotherapy, radiation, and hormone therapy. Nascimento said that the failure of Dr. Kane and HCHP to provide the biopsy at the time of her first complaints enabled her breast cancer to spread and diminish her life expectancy. An immediate biopsy, the plaintiff claimed, would have detected the disease and given her a fighting chance against breast cancer. According to the plaintiffs, now Nascimento had only a five percent chance of living over the next 10 years from the time the cancer was diagnosed. So, Nascimento and her family sought compensation for the pain and suffering and for alleged negligence on part of her doctor and HCHP.
The defendants claimed that Nascimento's cancerous condition existed before her biopsy was conducted and that an earlier biopsy would not have prevented the disease from spreading. Dr. Kane and HCHP argue that a biopsy was not warranted in 1989; a well-defined lump was not detected.
A Botched Examination?
On December 1, 1989, Nascimento, now 53, went to Dr. Kane for an examination of what Nascimento described as a lump in her left breast. Kane detected a suspicious mass in Nascimento's breast and ordered her to undergo a mammogram on March 15, 1990. The mammogram showed no signs of breast cancer.
Thirteen months later, in April 1991, Nascimento returned to Dr. Kane for her annual physical examination, still complaining about the lump. Allegedly, the doctor told the plaintiff not to worry about the condition, that she had lumpy breasts, and that it could be checked by mammogram during her next regular examination in 1992. However, during the eight months following this visit to Dr. Kane, Nascimento began feeling soreness and a slight change in the texture of the lump. In December 1991, she underwent a mammogram and then, finally, a biopsy. The lump in Nascimento's breast was indeed cancerous, and Nascimento underwent a mastectomy that included the removal of her left breast and 14 lymph nodes, six of which were malignant. Ultimately, Nascimento learned that despite her operation, her illness could still spread throughout her body. It was just a matter of time before the spread occurred.
The plaintiff claimed that Kane and Harvard Community Health Plan did not conduct a biopsy in 1989 because they wanted to limit the hospital costs to perform the tests. Allegedly, the hospital felt its budget was more important than its patient. (In addition, Nascimento reportedly claimed in her original complaint that HCHP refused to pay for a bone marrow transplant therapy that may have complemented her chemotherapy treatments after she learned about her illness. The plaintiff said that although her disease was already terminal at the time of her chemotherapy, the therapy could have helped her. However, just before trial, Nascimento dropped this claim.)
An Inevitable Condition?
Dr. Kane and HCHP claimed that Kane did not find any suspicious lesions or lumps on Nascimento's breast during the plaintiff's 1989 appointment that would have warranted ordering a biopsy at that time. They claimed that Dr. Kane acted prudently and expeditiously in December 1991, when she detected a well-defined lump in Nascimento's left breast. In addition, the defense argues that even if Dr. Kane had found an abnormality at that time, it would not have difference. Based on the defendants' own tests and analysis of the plaintiff's disease, by 1989 the cancer had already spread to the point where a biopsy and prior detection of breast cancer would not have changed Nascimento's current condition. Nascimento's breast cancer would still be terminal.