Case Scenario: THE COURT WAS APPALLED

In Tomcik v. Ohio Dep't of Rehabilitation & Correction, 10 the plaintiff, Tomcik, was in the custody of the defendant, a penal institution. Pursuant to the defendant's policy of medically evaluating all new inmates, on May 26, 1989, Dr. Evans gave Tomcik a medical examination. He testified that his physical evaluation included an examination of Tomcik's breasts; however, he stated that his examination was very cursory. The day after her examination, Tomcik examined her own breasts. At that time, she discovered a lump in her right breast, which she characterized as being about the size of a pea. She then sought an additional medical evaluation at the defendant's medical clinic. Testimony indicated that fewer than half of the inmates who sign the clinic list are actually seen by medical personnel the next day. Also, inmates who are not examined on the day for which the list is signed are given no preference in being examined on the following day. In fact, their names are simply deleted from the daily list, and their only recourse is to continually sign the list until they are examined. The evidence indicated that from May 27 on, Tomcik constantly signed the clinic list and provided the reason she was requesting medical care. A nurse finally examined Tomcik on June 21.

The nurse wrote in her nursing notes that Tomcik had a "moderate large mass in right breast." The nurse recognized that the proper procedure was to measure such a mass, but she testified that this was impossible because no measuring device was available. The missing "measuring device" to which she alluded was a simple ruler. The nurse concluded that Evans, the original doctor who had examined Tomcik, should examine her again. On June 28, Evans examined Tomcik again. He recorded in the progress notes that she had "a mass on her right wrist. Will send her to hospital and give her Benadryl for allergy she has." 11 Evans meant to write "breast," not "wrist." He again failed to measure the size of the mass on Tomcik's breast. Tomcik was transferred to the Franklin County Prerelease Center on September 28. On September 30, a nurse there examined Tomcik; the nurse recorded that she had a "golf ball-sized" lump in her right breast. Tomcik was transported to the hospital on October 27, where Dr. Walker treated her. A mammogram indicated that Tomcik's tumor was probably malignant. This diagnosis was confirmed by a biopsy performed on November 9.

Tomcik was released from confinement on November 13. On November 16, Dr. Lidsky, a surgeon employed outside of the penal institution, examined Tomcik. Lidsky noted the existence of the lump in her breast and determined that the size of the mass was approximately 4 to 5 centimeters and somewhat fixed. He performed a modified radical mastectomy on the plaintiff's right breast, removing nearly the entire breast. Tomcik alleged that it was the delay in her examination that ultimately led to the removal of her right breast; had she been seen more timely, much of the breast could have been spared. The defendant, the corrections department, contended that even if its employees were negligent, Tomcik's cancer was so advanced when discovered that it would nevertheless have required removal of her breast. 12 The Ohio Court of Appeals held that the delay in providing treatment to Tomcik fell below the medically acceptable standard of care. The court was "appalled" that the physician had characterized his evaluation as a medical examination and that what he described as a "cursory breast examination" should be considered medically sufficient. It seemed incredible to the court that a physician would deliberately choose not to take the additional few minutes or seconds to palpate thoroughly the sides of the breasts, which is a standard minimally intrusive cancer detection technique.

Ethical and Legal Issues

1. Do you agree with the court's decision? Discuss your answer.

2. Discuss why the court was appalled.

3. What ethical values were lacking by the caregivers?