Insurance Company Settles UHS Suit

The malpractice insurance company for University Health Services (UHS) agreed last Friday to pay $1 million to settle a lawsuit brought against Dianne M. Drake, a UHS doctor between 1985 and 1996.

Helena Nicholaysen, a 39-year-old Brookline resident and wife of a Harvard graduate student, sued Drake for not diagnosing her breast cancer until it had passed the point at which it could be effectively treated, spreading throughout her body to her lymph nodes.

"[Nicholaysen] is dying because a doctor at Harvard University Health Services failed to take Mrs. Nicholaysen's complaints of a breast lump seriously," said Andrew C. Meyer, an attorney with Lubin & Meyer, the firm representing Nicholaysen, in a statement yesterday.

"Dr. Dianne Drake failed to properly evaluate, monitor and follow up the lump reported by Mrs. Nicholaysen," he said.

Sources say Harvard disputes the claim that Drake was negligent, but since the lawsuit's filing, UHS has made procedural changes to avoid a similar situation.

The settlement was reached after two-and-a half years of legal maneuvering between Nicholaysen's lawyers and Risk Management, UHS's malpractice insurance company.

In November 1992, Nicholaysen reported a lump in her breast to Drake in a routine physical examination.

But Meyer said UHS did not test Nicholaysen for cancer until 18 months after this initial visit.

Nicholaysen's attorneys said Drake told her that "the lump was probably nothing to worry about." They added that Drake discouraged Nicholaysen from getting a mammogram, saying that mammograms do not reveal anything in women under 40.

They said Drake did not give Nicholaysen a mammogram referral that day.

Sources at Harvard familiar with the case said UHS contests that point. The sources said Drake ordered the mammogram during this initial visit. Both Harvard and Drake's defense attorney refused to comment publicly on the details of the lawsuit.

Sources at Harvard added that mammograms could not be performed at UHS, meaning that there was no tracking system to ensure that the tests were carried out.

Harvard spokesperson Joe Wrinn said UHS has corrected this and other problems brought to light by the lawsuit.

By the end of this month, UHS will be able to provide mammograms in its own building, he said.

Celine M. Boyle, an attorney with Lubin & Meyer, said that despite Drake's assurances, Nicholaysen remained concerned about the lump and called Drake several days later to again inquire about having a mammogram.

"Dr. Drake pooh-poohed [Nicholaysen's] concernsand didn't take her seriously," Boyle said. "Dr.Drake belittled my client's concerns."

Boyle said Drake mailed Nicholaysen a mammogramreferral. But Boyle said Nicholaysen, bothreassured and made to feel embarrassed to harp onthe point by Drake, never went for the mammogram.

Over the next 18 months, Nicholaysen returnedto UHS several more times to receive treatment forminor illnesses, but Drake never asked for theresults of the mammogram, according to Meyer.

By May 1994, the lump had grown, andNicholaysen asked for emergency treatment at UHS,which called in specialists to examine her.

Nicholaysen went through a mastectomy,radiation therapy and chemotherapy to attempt tocure the cancer, but she is now terminally ill.

"She's not going to beat this thing. She'sfighting it, but it's not a positive prognosis,"Boyle said.

Before the case was closed, Drake returned toKentucky. She had worked at UHS from July 1985 toOctober 1996.

Her defense attorney, Paul McTague, said sheleft Harvard to be with her elderly father. "Herleaving had nothing to do with this case," hesaid

"Dr. Drake pooh-poohed [Nicholaysen's] concernsand didn't take her seriously," Boyle said. "Dr.Drake belittled my client's concerns."

Boyle said Drake mailed Nicholaysen a mammogramreferral. But Boyle said Nicholaysen, bothreassured and made to feel embarrassed to harp onthe point by Drake, never went for the mammogram.

Over the next 18 months, Nicholaysen returnedto UHS several more times to receive treatment forminor illnesses, but Drake never asked for theresults of the mammogram, according to Meyer.

By May 1994, the lump had grown, andNicholaysen asked for emergency treatment at UHS,which called in specialists to examine her.

Nicholaysen went through a mastectomy,radiation therapy and chemotherapy to attempt tocure the cancer, but she is now terminally ill.

"She's not going to beat this thing. She'sfighting it, but it's not a positive prognosis,"Boyle said.

Before the case was closed, Drake returned toKentucky. She had worked at UHS from July 1985 toOctober 1996.

Her defense attorney, Paul McTague, said sheleft Harvard to be with her elderly father. "Herleaving had nothing to do with this case," hesaid