BREAST CANCER


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Delayed breast cancer diagnosis is one of the most commons forms of medical malpractice. The claim arises when the physician (typically a family practitioner/ surgeon/ dermatologist/ obstetrician or gynecologist) discount or fail to recognize the severity, the physician fails to properly read a radiology scan (Radiology Errors), or a physician or hospital fails to report the results or follow up with the patient.

The cancer then grows and advances to more critical stages that requires more severe treatment (mastectomy, radiation, chemotherapy) than would have been required had the cancer been diagnosed earlier. Moreover, the cancer can infiltrate the lymph nodes and cause a greater chance of recurrence further decreasing the chance of survival.

A medical malpractice case may provide answers to questions that the physician or hospital have been unwilling to provide, as well as provide for compensation for the misdiagnosis of cancer and all injuries that were caused by theDiagnostic Error and delay in treatment.

Joseph Lyon is a highly-rated, experienced, and passionate Cincinnati medical malpractice attorney handling hospital negligence and breast cancer misdiagnosis cases.  For a free and confidential consultation call 800. 513. 2403 or complete the intake form. You will speak with Mr. Lyon directly. 


Failure to Diagnose Breast Cancer


Confidential settlement for failure to timely diagnose breast cancer in a 39-year-old woman. As a result of the delay, the evidence demonstrated that the patient suffered a 50% increase in the likelihood of recurrence, which would ultimately return as terminal metastatic disease.

The failure to diagnose arose from the physician’s failure to communicate a positive biopsy which showed early stages of breast cancer. Had the biopsy been communicated the patient would have been treated with excision and avoided chemotherapy, mastectomy, and had a 95% chance of survival.

After two years of litigation, the parties reached a confidential settlement that accounted for medical bills, mastectomy, as well as all wrongful death damages.


Proving Misdiagnosis of Breast Cancer in Lawsuits


In all Medical Negligence cases, it is the Plaintiff’s (i.e, the patient) burden of proof. There are four legal elements to prove a medical malpractice case based on a misdiagnosis of breast cancer.

  • Duty of Care (Physician/ Patient relationship)
  • Negligence (breach of the standard of care )
  • Causation (the injury must as a direct and proximate related to the negligence)
  • Damages (physical and financial injuries )

Delayed Treatment and Diagnosing Breast Cancer


The first step in any medical malpractice case is to determine whether the physician breached the standard of care. There is not one standard of care that applies to all clinical scenarios. In most cases, the patient presents to her physician complaining of a small, painless, lesion or mass she has discovered on her breast.

The standard of care will depend on the specific case (i.e., presentation of the patient, objective/ subjective findings, and follow up instructions).  However, there are some general rules found in the authoritative texts and practice manuals that the majority of experts and physicians would agree with.

  1. Delay in Diagnosis
  2. Yearly mammograms should be given to normal risk women over the age of 40.
  3. Clinical breast exams should be given to normal risk women between the ages of 20-39 every three years.
  4. If the mass does not resolve within one menstrual cycle, the physician must rule out all possibility of malignancy, usually starting with a diagnostic mammogram.
  5. It should be noted that a negative mammogram does not necessarily mean that the evaluation is conclusive where there is a suspicious palpable mass.
  6. Other diagnostic measures, including tissue biopsy or image-guided needle biopsy, are necessary, particularly where the mass is solid.
  7. Following the testing, the physician should timely interpret and communicate the test results to the patient and timely order any additional follow up or diagnostic measures;
  8. The initial tumor-directed treatment should be initiated within four months of diagnosis

Breast Cancer Misdiagnosis Cases


The causation component of the case will depend greatly on the individual case and requires the close scrutiny of a highly qualified oncologist who is familiar with all the latest clinical studies, as the data changes frequently.

This short discussion cannot address all the issues that arise in this part of the case.  The case will depend on what stage the cancer was at the time when it should have been diagnosed versus when it was ultimately diagnosed.


Many factors go into staging the cancer and developing the treatment plan for the patient. A few general rules include:

  1. Cases that involve a delay of less than one year are more difficult on issues of causation.
  2. The probability of metastasis to regional nodes (both axillary and intermal mammary) and to distant sites increases as tumors enlarge.
  3. Tumors of 1.0 cm or less in diameter have a very low chance of recurrence.
  4. Patients with ER (estrogen receptive) positive tumors have prolonged disease free survival after primary treatment, superior overall survival, and longer survival after recurrence as compared to ER negative.
  5. Ductal Carcinoma In Situ (DCIS) represents a small group of pre-invasive breast cancer that can almost always be cured with local regional therapy.
  6. However, cancers in women under the age of 40 are typically more aggressive and should be carefully evaluated.
  7. If the delay is more than three months, cancers will get larger and more aggressive.
  8. Large tumor sizes, metastasis in the lymph nodes are associated with a worst prognosis.

The Stages of Breast Cancer


  • Carcinoma In Situ: Very early breast cancer found only in a local area and in only a few areas of cells;
  • Stage I: Tumor is no larger than 2 CM (about an inch) and has not spread beyond the breast;
  • Stage II: Tumor measures from 2-5 CM (one to two inches) and has spread to lymph nodes in the underarm;
  • Stage III: Cancer is larger than 5CM an involves more of the underarm lymph nodes , and/or it has spread to other lymph nodes or other tissue near the breast;
  • Stage IV: Cancer has spread to other organs in the body, most often the bones, liver, lungs, or brain.

In short, causation will require showing that the stage and treatment would have been lower had the cancer been diagnosed earlier.


Misdiagnosis of Breast Cancer Lawsuits


The following are compensable damages in medical malpractice lawsuits based on a misdiagnosis of breast cancer:

  • Reduced Survival Rate due to delay in diagnosis
  • Mastectomy due to delay in diagnosis
  • Chemotherapy due to delay in diagnosis
  • Radiation due to delay in diagnosis
  • Lost wages and earning capacity
  • Past and future medical bills
  • Wrongful Death

Failure to Diagnose Breast Cancer Lawsuits


  1. Causation: The defendants will almost always argue that the delay did not impact the treatment, the chance of recurrence, or chance of survival.  Depending on the presentation, the defense will either argue that the cancer was at a later stage when the patient first presented or it was not that far advanced when it was ultimately diagnosed. The goal is to mitigate the damages and demonstrate that the patient is not in any worst position today due to the delay.  This argument is tougher to make the longer the delay.
  2. Patient Contributory Negligence: The physician may allege that the patient was informed to follow up and call for the test results, or possibly argue that as the tumor was growing the patient failed to notice the growth and follow up when the changes were notable.  These are sensitive defenses but depending on the circumstances can be effective if the evidence supports that the patient did not accept responsibility for her own health.
  3. HMO: Health Management Organizations are more involved than ever in dictating the care, particularly diagnostics scans. Some managed care practices discourage doctors from making referrals or ordering additional diagnostic tests to rule out breast cancer.  This defense may be offered to mitigate the responsibility of the physician but may also add a new defendant in the case.
  4. Patient Specific Issues (Breast Density): The physician may claim that the patient’s breast density prevented a positive reading on the mammogram or clinical evaluation. Therefore always keep in mind that a negative mammogram is not conclusive, particularly where there are issues of breast density. This issue can be a double-edged sword where the physician stopped after ordering a mammogram.

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Why are these cases important?

 When management or individuals fail to provide a sufficient level of care, victims may seek legal recourse and file suit against the negligent parties. Medical malpractice lawsuits improve the quality of healthcare by holding physicians and hospitals responsible when they fall below a professional standard of care. 

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Questions about Medical Malpractice

What is a Medical Malpractice Lawsuit?

Hospitals, medical staff, nurses and doctors are responsible for providing proper patient care. When management or individuals fail to provide a sufficient level of care, victims may seek legal recourse and file suit against the negligent parties.

Without medical malpractice laws, medical mistakes would go without consequence, patients would be uncompensated for preventable injuries, and medical providers would have less incentive to improve the medical system to prevent future injuries.

Despite the reports discussed above, frivolous claims brought by medical malpractice attorneys and runaway juries have been blamed as causing a medical crisis. There is no medical malpractice crisis, it is simply propaganda created by the U.S. Chamber of Commerce and large insurance companies to pollute the American jury pool and change the law in a manner that is favorable to them and adverse to the average American. And sadly, it has worked.

Currently, 90 percent of juries side with the physician over the patient at trial. As a result, insurance companies are bolder than ever and refuse at times to settle even the most meritorious of cases knowing that the chances of the patient finding a fair and impartial jury is extremely low, especially in more conservative parties of the country such as Hamilton County, Ohio.

What is a “Never Event” in Hospital Care ?

The Deficit Reduction Act of 2005 required that conditions be identified that (a) are costly and occur at high rates, (b) are assigned as cases to the Diagnosis-Related Group, and (c) could have ultimately been prevented with appropriate care. These hospital-acquired conditions occur as negligence on the part of hospital staff and often result in a multitude of medical malpractice lawsuits.

Conditions that meet the three requirements for identification:

What if a hospital makes me an offer directly?

Many hospitals and physicians are taking proactive approaches to resolve viable medical malpractice claims by approaching patients who do not have legal counsel. The “family meeting” presentation will include deterring patients from seeking legal counsel. This is a very concerning development in the course of medical liability and risk management.

We strongly advise patients not to engage in “family meeting” settlement negotiations without an experienced Cincinnati medical malpractice lawyer present. Hospitals and physicians have lawyers who are specialized in medical malpractice claims advising them on how to approach the case, and it is only fair that the patient is afforded the same benefit of qualified counsel.

The “family meeting” practice of settling hospital negligence cases without an attorney does not benefit the patient in most cases, but almost always benefits the negligent hospital.

Do not be deterred by a hospital representative implying that the case will be compromised if you seek counsel. While attorney fees will need to be paid, those costs should not be a deterrent. The Lyon Firm adopts a lower contingency fee structure and offers hourly rates for cases that can be resolved without litigation.

If the parties wish to resolve the matter, having qualified counsel on both sides is beneficial to the process. The goal should be a settlement where both parties are satisfied, not a case where the hospital pays substantially less than the fair value of the claim.

There are numerous issues that need to be considered before settling a medical malpractice case, and you should know what the fair value of the claim is before accepting a settlement.

The hospital knows the fair value having been involved in other cases. You as the patient should work with counsel who has successfully worked on other cases and can advise on the appropriate risk of future litigation and settlement value.

If a hospital is approaching you or a family member about a settlement without a Cincinnati Medical Malpractice lawyer, please call (800) 513-2403 for a free consultation.

Why hire the Lyon Firm?

Our Firm will help you find the answers.  The Firm has the experience, resources and dedication to take on difficult and emotional cases and help our clients obtain the justice for the wrong they have suffered. 

 Experience:  Joe Lyon is an experienced Cincinnati Medical Malpractice Lawyer. The Lyon Firm has 17 years of experience and success representing individuals and plaintiffs in all fifty states, and in a variety of complex civil litigation matters. Medical malpractice lawsuits can be complex and require industry experts to determine the root cause of an accident or injury. Mr. Lyon has worked with experts nationwide to assist individuals understand why an injury occurred and what can be done to improve their lives in the future. Some cases may go to a jury trial, though many others can be settled out of court.

Resources/Dedication: Mr. Lyon has worked with experts in the fields of accident reconstruction, biomechanics, epidemiology, metallurgy, pharmacology, toxicology, human factors, workplace safety, life care planning, economics, and virtually every medical discipline in successfully representing Plaintiffs across numerous areas of law. The Lyon Firm is dedicated to building the strongest cases possible for clients and their critical interests.

Results:  Mr. Lyon has obtained numerous seven and six figure results in personal injury,  automotive product liability, medical Negligence, construction accidents, and auto dealership negligence cases.  The cases have involved successfully litigating against some of  the largest companies in the world

Your Right to Safe healthcare

Watch our Video About the Legal Process

A recently published study titled, A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care, estimated that 210,000 hospital patients die each year from medical mistakes that could have been prevented.

This places medical malpractice as the third leading cause of death in the United States after heart disease and cancer. Further, the Office of The Inspector General estimated 180,000 deaths per year are due to medical mistakes. And a Study from Journal of Patient Safety estimated that the number of preventable deaths is between 210,000 and 440,000.

Incredibly, the Wrong Site Surgery Project Study found that national incidence of wrong site surgeries, which includes wrong patient, wrong procedure, wrong site and wrong side surgeries, may be as high as 40 per week. 

Our Victories

The Lyon Firm aggressively, professionally, and passionately advocates for injured individuals and families against companies due to a defective product or recalled product to obtain just compensation under the law. 

FAILURE TO DIAGNOSE BOWEL OBSTRUCTION

WRONGFUL DEATH

(Cincinnati, Ohio):  Confidential settlement for a family due to a wrongful death. An emergency room physician failed to recognize the common symptoms associated with bowel obstruction and prescribed a contraindicated medicine of GoLytley.  The patient died at home the day of discharge after taking the medication. The case against the emergency room physician was resolved by settlement following extensive discovery. The settlement was paid to the spouse and surviving adult children for the loss of their mother. While no amount of money could bring back their mother, the case provided answers and held the hospital accountable.

FAILURE TO DIAGNOSE BREAST CANCER

$910,000 Settlement.

(Cincinnati, Ohio):   Joe Lyon was second chair in a case involving the failure of a physician to promptly communicate a positive breast cancer result to a patient. As a result of the delay, the cancer progressed from in situ carcinoma to stage 3B with lymph node involvement. The treatment required mastectomy and radiation/ chemotherapy rather than a simple excision. The case settled after extensive discovery. The defense argued: “the patient should have called the physician.” The settlement provided recovery for suffering through a misdiagnosis and the loss of a spouse and a mother. While the settlement cannot bring this wonderful woman back, it helped her family move forward with life’s challenges and encouraged  future accountability.

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