Radiology providers must pay $7M, modify policies after breast cancer miss

Florida radiology providers must implement policy changes and pay out nearly $7 million after missing a woman’s breast cancer on imaging, leading to an eventual terminal diagnosis. 

Miami law firm Freidin Brown, P.A., announced the news June 24 after securing the payout on behalf of its client, Deborah Higgs. The woman, who was 59 at the time, visited Baptist Medical Park in Pensacola on Feb. 8, 2022, after discovering a palpable breast lump. 

Radiologist Henry C. Lusane Jr., MD, with Acumen Medical Imaging & Interventional, interpreted the images, reporting the issue as benign. However, Higgs returned in October 2022 after the lump became bigger and more painful, and she was diagnosed with terminal breast cancer. 

The patient and her attorneys later filed suit alleging medical malpractice and won the settlement on June 5 before the trial started. Acumen, meanwhile, had agreed to settle at an earlier date. 

“As I told my lawyers from the beginning, it was a priority for me to see accountability, but also to make sure other women know my story,” Higgs said in a statement shared with Radiology Business. “If my story and the policy changes in this settlement help protect even one woman, I will know I did my part.”

Baptist Health Care shared a statement with local media on the matter. 

"After years of ongoing dispute, all parties have agreed to a mutually acceptable resolution to avoid the distraction and expense of continued litigation," Baptist said in a statement sent to the Pensacola News Journal. "The agreement does not represent an admission of guilt or liability. Our commitment to providing compassionate, high-quality care has been, and continues to be, at the heart of everything we do."

Meanwhile, Acumen Medical Imaging—which is the exclusive imaging provider to BHC and also goes by Radiology Associates of Pensacola—did not immediately respond to a request for comment. Dr. Lusane's attorney also shared a statement with the Pensacola News Journal. 

"Privacy laws prohibit us as healthcare providers from commenting on a patient’s private health information, which limits our ability to fully defend the statements made in the article," E. Victoria Penny, an attorney with Penny Stevens Law in Tallahassee, told the newspaper. "The settlement was a compromise of a disputed claim and not an admission of fault, and plaintiffs acknowledged that in the terms of the settlement. The allegations remain allegations." 

More on the case

Higgs underwent both a diagnostic mammogram and breast ultrasound at Baptist after the initial imaging visit. Plaintiff attorneys raised issue that Dr. Lusane purportedly never physically examined the lump, “negligently” reporting it as benign. Baptist later sent a letter to Higgs, indicating her breast imaging results were normal. 

When she returned in fall 2022, Higgs was referred to a surgeon, who testified at trial that he “immediately recognized the seriousness of the situation” when he conducted a physical exam. The doctor discovered enlarged axillary lymph nodes and ordered additional breast imaging. When Higgs returned to Baptist Medical Park, Dr. Lusane again interpreted the results, but this time noted the “high suspicion for malignancy,” according to attorneys. A biopsy later confirmed the diagnosis of stage 4 terminal cancer. 

During the trial, attorneys argued that, if the radiologist spotted the disease in February, it would have helped Higgs avoid the grim prognosis. Experts testified during trial that the woman will likely die from the disease “as a result of the preventable eight-month delay in diagnosis.” 

Baptist had reportedly sought to dismiss responsibility for the matter, since the radiologist was an independent contractor at the time. However, attorneys presented internal corporate messages from Baptist officials, showing that the hospital was “in control of the doctors providing care” and that Lusane was “an agent of Baptist Hospital.” 

As part of the settlement, Baptist and Acumen Medical Imaging/Pensacola Radiology have agreed to make policy changes to prevent this from happening again. The hospital will change its forms so that those presenting for a diagnostic mammogram will be given a clear notice they should still follow up with a doctor, even if the results are benign or normal. Acumen, meanwhile, will mandate that when a patient presents with a palpable mass, the nurse will then ask if the patient wants to see the interpreting radiologist in person for an examination. If there is not a rad immediately present, the woman can then make a future appointment or seek a referral to a surgeon. 

Plaintiff attorneys applauded these modifications following the trial. 

“This case began with Deborah Higgs’s story, but it ended with a story about preventability and patient safety,” Jonathan Freidin, managing partner for Freidin Brown, said in a statement. “While no amount of money can change Deborah’s diagnosis, we are proud to have secured meaningful changes that we believe will help future patients and avoid preventable mistakes for women undergoing diagnostic breast imaging.” 

Baptist is responsible for $5 million of the verdict, while the radiology group must pay the other $2 million. As part of the settlement agreement, Lusane is neither admitting to nor denying the allegations. The Florida Board of Medicine also is imposing a $6,500 fine against his medical license, which must be paid within 30 days. In addition, the doc must complete five hours of continuing medical education on breast imaging interpretation within one year.

Editor's note: This story was updated on July 6 to include statements from Baptist and Dr. Lusane. We've also clarified that the payout agreement was reached through a pretrial settlement.