Can I File a Lawsuit for a Breast Cancer Diagnostic Error?
Since 1989, the number of breast cancer deaths has significantly decreased. This decrease is credited mainly to groups who began raising awareness about breast cancer during the 1980s. Because of the emphasis put on women’s breast cancer from organizations like the American Cancer Society and The Breast Cancer Research Foundation, women and the medical community began learning the importance of early detection. Also, these groups raised money that went toward groundbreaking medical advances in breast cancer treatment. Still, women have a ways to go when it comes to receiving the treatment they deserve. Breast cancer misdiagnosis or delayed diagnosis top the list of medical malpractice claims involving cancer.
This is where the law comes in. Delayed diagnosis or misdiagnosis of breast cancer can result in a medical malpractice lawsuit. Misdiagnosis or delayed diagnosis is not medical malpractice worthy alone, however, to file a successful lawsuit a patient will need to prove that their situation is the result of, or resulted in:
- Improper medical care
- Delayed or no treatment—which worsened the patient’s medical condition
Statistically speaking, one out of every 71 cancer cases are diagnosed incorrectly. Also, researchers estimate that approximately 25 percent of breast biopsies result in diagnostic errors. Although the law does provide some protections for doctors, doctors are still required to meet a medical standard of care. Any failure to do may result in a lawsuit against the doctor.
What is a Medical Standard of Care?
The medical standard of care is the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community would provide under the circumstances that led to the alleged malpractice.
Most medical malpractice lawsuits are decided based on whether a doctor, clinic or hospital was negligent in treating or failing to treat a patient.
What is Breast Cancer Misdiagnosis?
A breast cancer misdiagnosis occurs when a doctor diagnoses a breast cancer patient with an illness that the patient does not have. Breast cancer misdiagnoses can occur in many ways. They may be considered benign conditions, such as:
- Blocked milk ducts
- Breast cyst
- Breast cysts
Another example of a cancer misdiagnosis is doctors diagnosing a patient with non-invasive cancer. For example, if a woman received treatment for non-invasive cancer and years later notices lumps in her lymph nodes or neck, doctors may run tests to confirm that her present condition is cancerous. It is likely that her recurrent cancer could’ve been avoided if pathologists or radiologists had been more thorough in diagnosing her initial cancer. Instead, the woman will have to endure months of the adverse side effects of chemotherapy and radiation, in addition to subsequent medical bills. She is entitled to receiving compensation because of her doctors’ diagnostic negligence.
Breast cancer misdiagnosis is a serious problem that may carry severe harm for patients. This type of negligence may take several shapes, such as:
Diagnosing one type of cancer, when its really another type of cancer can lead to serious, potentially deadly consequences for breast cancer patients.
Failure to diagnose
This occurs when doctors should have detected breast cancer based on symptoms, common age-based tests, or readily available screening methods.
A wrong cancer diagnosis occurs when a person receives a false positive. In these cases, it’s possible for a person to undergo cancer treatment that leads to severe side effects.
What is a Delayed Breast Cancer Diagnosis?
Delayed diagnosis is the primary reason for a majority of medical malpractice lawsuits involving breast cancer. This is because the earlier a doctor diagnoses breast cancer, the better the prognosis is for the patient. However, a delayed breast cancer diagnosis may result in patients having to undergo more radical treatments.
Nearly half of all delayed-diagnosis cases involve radiology results. However, this is not necessarily because of a radiologist’s negligence. In some cases, it is the result of primary care physicians or other healthcare professional misreading or misinterpreting the radiologist’s report.
Delayed diagnosis is most likely to occur in younger women. Although women under 50 account for a small portion of all breast cancer cases, they account for 60 percent of settled medical malpractice lawsuits. Many doctors don’t take younger patients breast cancer concerns seriously. Unfortunately, these preconceived notions may lead to delayed diagnosis and result in more extreme treatment. Doctors have a responsibility to take a woman’s breast health seriously at any age. There is no excuse for delayed diagnosis.
There are a number of reasons a woman can have a delayed diagnosis. Patients file medical malpractice lawsuits for the following reasons:
- Failure to perform a mammogram
- Failing to test a palpable mass
- Misreading a mammogram and/or ultrasound
Biases Towards Women May Lead to Diagnostic Negligence
In cases of both delayed diagnosis and misdiagnosis, doctors make potentially fatal errors. These types of errors carry serious consequences for cancer patients. Cancer caught in its earliest stages increases the chances for successful treatment. However, chances of survival decrease when s cancer diagnosis occurs in the later stages, or after cancer has already metastasized. It is imperative that doctors do everything they can to examine a patient to rule out breast cancer.
Medicine has long had a bias toward women. Doctors often downplay women’s health concerns. At large, the medical community dismisses women’s medical concerns as hysterical or stress related. For example, studies show that women are more likely to receive sedatives rather than pain medication for their ailments. Further, in the United States women average a 65-minute wait before receiving an analgesic for acute abdominal pain in the ER compared to the 49 minutes that men wait.
These gender biases in our medical system carry extreme and sometimes fatal consequences for women.
Implicit Bias and Health Care Inequity
More than 90 percent of women who receive an early stage breast cancer diagnosis will survive. But limited access to culturally competent health care prevents some minority and low-income women from accessing early detection. For example, although White women and Black women develop breast cancer at similar rates, Black women are 40 percent more likely to die of breast cancer than White women. This is often because Black women receive late-stage diagnosis which significantly limits treatment options. Even after adjusting for income, Black and Latina women on average undergo more radical breast cancer surgeries than their white counterparts.
These disparities are the result of both medical professional implicit bias and socioeconomic factors. Studies indicate that doctors with anxiety about interactions with people of color can result in white providers spending less time with patients. This may lead to doctors missing out on crucial information that can help them diagnose breast cancer in Black and Latina women.
Why do Diagnosis Errors Occur?
Diagnostic errors can occur at any stage in the diagnostic process. A diagnostic error is any diagnosis that is missed, wrong or delayed as detected by subsequent testing. The harm from a misdiagnosis or delayed diagnosis covers a spectrum of injuries. These injuries range from receiving chemotherapy for nonexistent cancer to death from undiagnosed metastatic cancer.
A 2013 study by Johns Hopkins Medicine found that diagnostic errors are more common, costly and harmful than treatment mistakes. The number of patients who suffer misdiagnosis-related, potentially preventable and significant permanent injury or death annually in the U.S. ranges from 80,000-100,000.
What is Diagnostic Negligence?
Diagnostic negligence is a type of medical malpractice. It occurs when a doctor falls short of a standard of care. When it comes to cancer, there standards of care that apply to all cancer. However, certain cancers, such as breast cancer, have additional standards and early detection methods. Doctors should be aware of these screening standards and make them available to their patients. If a doctor fails to do so, that is an act of diagnostic negligence.
Examples of Diagnostic Negligence
- Ignoring patient complaints and symptoms that align with a possible breast cancer diagnosis.
- Failure to seek further testing for symptoms or abnormal cancer screening results.
- Failing to refer a patient to an appropriate cancer specialist.
- Failure to disclose normal or abnormal test results with a patient.
- Failure to consider a patient’s medical history, previous diagnoses or family history.
- An inadequate or inaccurate sampling of breast cytology or tissue by the physician.
For people who receive a wrong cancer diagnosis, or whose cancer diagnosis comes later than it should have, are eligible to seek compensation for lost income, treatments and other expenses related to a doctor’s medical negligence.
Have There Been Successful Breast Cancer Diagnostic Error Lawsuits?
Suits involving breast cancer are the most common cause of malpractice litigation in the United States. In fact, the Physician Insurers Association of America found that between 2002 and 2011, breast cancer claims were the costliest for hospitals among all cancer claims. Total payments during that time exceeded $296 million. Diagnostic errors were the primary error associated with breast cancer claims.
What Should I do if I Received a Delayed Diagnosis or Misdiagnosis?
Contact a qualified medical malpractice attorney right away. Failure to accurately diagnose cancer can delay potentially life-saving treatments and lead to premature, avoidable death. When cancer receives a later-stage diagnosis, treatment may involve medication with painful and debilitating side effects. A knowledgeable medical malpractice attorney can help you recover monetary damages you deserve.
The Carlson Law Firm Can Help
Breast cancer doesn’t have to be a deadly disease. If a doctor diagnosis cancer during the early stages, the prognosis for breast cancer patients is extremely favorable. Breast cancer misdiagnosis and delayed diagnosis can lead to severe physical and financial consequences. A qualified medical malpractice attorney from The Carlson Law Firm can help you determine if filing a breast cancer misdiagnosis or delayed diagnosis is the right step for you.
We are prepared to assist you with every aspect of your breast cancer misdiagnosis or delayed diagnosis case. A team of dedicated support staff backs our medical malpractice attorneys. We have in-house registered nurses who will assist in preparing your case.
- Written by Kazia Conway