Breast Cancer Misdiagnosis
Cincinnati Medical Malpractice Attorney
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 (radiologist), 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 the misdiagnosis.
Joseph Lyon is a highly rated, experienced, and passionate Cincinnati medical malpractice attorney handling 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.
Example of Past Case
Confidential settlement on behalf of a 38 year old woman for failure to timely diagnose breast cancer in a 39 year old woman. As a result of the delay, 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.
How do you Prove a Misdiagnosis of Breast Cancer Case?
In all medical malpractice 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 )
What is the Standard of Care for Evaluating 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.
- The diagnosis should be made as early as possible.
- Yearly mammograms should be given to normal risk women over the age of 40.
- Clinical breast exams should be given to normal risk women between the ages of 20-39 every three years.
- 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.
- It should be noted that a negative mammogram does not necessarily mean that the evaluation is conclusive where there is a suspicious palpable mass.
- Other diagnostic measures, including tissue biopsy or image guided needle biopsy, are necessary, particularly where the mass is solid.
- 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;
- The initial tumor directed treatment should be initiated within four months of diagnosis
How is Proximate Causation Proven in 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:
- Cases that involve a delay of less than one year are more difficult on issues of causation.
- The probability of metastasis to regional nodes (both axillary and intermal mammary) and to distant sites increases as tumors enlarge.
- Tumors of 1.0 cm or less in diameter have a very low chance of recurrence.
- 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.
- Ductal Carcinoma In Situ (DCIS) represents a small group of pre-invasive breast cancer that can almost always be cured with local regional therapy.
- However, cancers in women under the age of 40 are typically more aggressive and should be carefully evaluated.
- If the delay is more than three months, cancers will get larger and more aggressive.
- Large tumor sizes, metastasis in the lymph nodes are associated with a worst prognosis.
What are the Stages of Breast Cancer?
The American Joint Commission on Cancer of The American Medical Association Classification
- 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.
What Damages are Compensable in a Misdiagnosis of Breast Cancer Lawsuit?
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
What are the Legal Defenses in Breast Cancer Misdiagnosis Cases ?
- 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.
- 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.
- 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.
- 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.
Some Additional Helpful Links
- Common Client Questions — Free Legal Advice
- Lyon Firm Breast Cancer Misdiagnosis Blog
- Lyon Firm Medical Malpractice Blog
- American Cancer Society
- American Society of Clinical Oncology
- National Cancer Institute
- National Cancer Data Base Benchmark and Survival Reports
- Surveillance Epidemiology and End Results Cancer Statistics Page
- MD Anderson Cancer Center
If you or a loved one suffered from a Breast Cancer Misdiagnosis or related Medical Malpractice, and have questions about the legal remedies available to improve quality of life and medical care, contact The Lyon Firm (800) 513-2403. You will speak directly with Mr. Lyon, and he will help you answer these critical questions.
After two hip replacement surgeries, I was informed that one of the prosthesis was the DuPuy Joint and the other was very similar but manufactured by a different company. After several attempts to contact the manufacturer directly to discuss the claim, I was met with bureaucratic red tape that appeared to be insurmountable. I then turned to Joe Lyon of the Lyon Law Firm who immediately cut through the pro I highly recommend Joe if you are faced with the need for this type of litigation.Tim Ross
I met Joe during what was easily one of the worst times of my life. My husband had been in a serious accident and was a quadriplegic following that accident and remained in one medical facility after another until his death nearly four years later. We had contacted an area attorney who told us we absolutely did not have a case. Then we called a Cleveland firm that took the case and brought in Joe. Joe did so much of the work and became just like family to us. I would highly recommend Joe to anyone and be willing to guarantee that he will do anything and everything possible to get satisfactory results. He is extremely dedicated to his clients and very hard working. Mike and I came to think of him like a son, I still do; if it wasn’t for him I don’t believe our case would have been settled the way it was and may have ended up in a courtroom where the results can go any way.Donna Urchak