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Appeals court reopens Colorado Springs patient’s delayed cancer-diagnosis lawsuit
A federal appeals panel has revived Kate Lewis’ malpractice claim, ruling that her case should not have been dismissed based on the timing of her cancer diagnosis. The decision sends the dispute back for further proceedings; it does not decide whether the nurse or the government was negligent.
A three-judge panel of the 10th U.S. Circuit Court of Appeals has reinstated a Colorado Springs woman’s medical malpractice claim against the federal government, finding that a lower court could not conclude she had waited too long to sue based on the date she learned a breast lump was cancerous.
Kate Lewis alleges that nurse practitioner Beth Trexler dismissed a lump in her left breast as “nothing to worry about” during a Feb. 1, 2017, visit at Peak Vista Community Health Centers. Lewis later developed terminal, metastatic breast cancer. She and her husband sued the United States under the Federal Tort Claims Act, which allows certain claims against the government for conduct by federal employees. Peak Vista receives federal funding.
The appeals court’s Oct. 14 ruling reverses the dismissal of the case, but does not determine whether Trexler was negligent or whether the alleged delay caused Lewis’s cancer to worsen.
The dispute turned on Colorado’s three-year medical malpractice statute of repose, which generally sets a deadline based on when the alleged wrongful act occurred. The law provides an exception when a person could not have known about the injury and its cause. Lewis’s claim was filed after the three-year period measured from her 2017 visit, prompting the government to argue it was barred.
A federal magistrate judge initially dismissed the case, then later ruled for the government after reconsidering it. The judge reasoned that Lewis had enough information to connect the cancer diagnosis to the earlier visit by Dec. 31, 2019, leaving her only until Feb. 1, 2020, to sue under the state deadline.
The appeals panel disagreed. Lewis did not learn the lump was cancerous until Dec. 31, 2019, and first spoke with an oncologist about the cancer’s possible origins less than two months later. The panel noted that she had received other medical evaluations in the intervening years, including an ultrasound that identified benign cysts.
In its decision, the panel said there was no dispute that a period passed when Lewis neither knew nor could have known about the injury and its cause. Judge Nancy L. Moritz, writing for the panel, questioned how Lewis could have known that the 2017 assessment was connected to her cancer when several later providers also had not identified the lump as cancerous.
The ruling allows Lewis’ claim to proceed rather than ending it on the statute-of-repose issue. The case, Lewis et al. v. United States, was decided unanimously by Moritz and Judges Robert E. Bacharach and Richard E.N. Federico.