It is estimated that one out of every 71 breast cancer cases are incorrectly diagnosed and 25% of biopsies are misdiagnosed due to error. Delayed diagnosis, or misdiagnosis, of breast cancer is the leading cause (approximately 82% in one study) of breast cancer-related medical malpractice lawsuits.
A qualified medical expert will always be necessary when proving (or defending against) medical malpractice and in many cases, is the decisive difference between a favorable and unfavorable outcome. But a delayed diagnosis breast cancer case presents unique challenges which often require the assistance of more than one expert. Importantly, it is not enough to show that the diagnosis was delayed, but rather, that the delay was significant enough to lead to the harm suffered by the plaintiff. As such, one expert, usually in the field of radiology or imaging reading, is necessary to assess the available records and determine whether or not they were adequately assessed at the time of the plaintiff’s initial diagnosis. Then another expert, typically in the area of oncology, should be utilized to establish whether the delay in diagnosis proximately contributed to the plaintiff’s condition.
Delayed diagnosis cases that go to trial tend to slightly favor the defendant, however, the majority of lawsuits reach a settlement out of court, and those settlements are typically substantial. The outcome of these types of cases is not predictable, likely due in part to the uniqueness of the issues surrounding breast cancer diagnosis. The causes of a delayed diagnosis vary but generally fall into the categories of failing to perform a mammogram, failing to correctly read a mammogram, and/or failing to test a detected mass.
Failure to Perform a Mammogram
In order to resolve a medical malpractice case alleging failure to diagnosis, two questions must be asked: 1) Was the defendant negligent in failing to diagnose the cancer? and 2) Did the delay in diagnosis proximately cause the patient’s damages? The first step in any breast cancer diagnosis would be the mammography. Failing to conduct a mammography, however, does not necessarily rise to the level of malpractice in light of certain factors. Although breast cancer is the leading cause of cancer-related deaths in women, 80% of breast pathology is benign. As a result, physicians may assume that a patient is suffering from a benign pathology and forego a mammography. But at what point does failing to conduct a mammogram constitute medical malpractice?
The answer is far from unanimous. Some experts in the field have argued that a delayed mammography of 3 months or more did not affect survival rates, while other experts have argued the opposite. During trial, however, the expert testimony in support of the plaintiff seems to be more compelling to a jury. In the case of a 28-year old woman who had recently given birth, a mammography was delayed six weeks from the discovery of a mass in her breast. She was subsequently diagnosed with breast cancer and died one year after her diagnosis. Her family successfully sued her physicians and was awarded $2.8 million on the basis that the six-week delay adversely affected her prognosis. Interestingly, this same case has been criticized by radiology experts, who had found the defense testimony that the delay had no measurable effect on survival to be more accurate. Some experts have attributed these outcomes to the general public’s perception of the efficacy of a mammography and that cancer can be detected 100% of the time – an incorrect belief that may nonetheless sway a jury when considering the effect of a delayed mammogram.
Failure to Properly Read a Mammogram or Ultrasound
In claims where a mammogram or ultrasound was conducted but improperly read, radiologists are implicated a majority of the time, as more than 60% of radiologists are tasked with interpreting breast imaging studies. There are two different types of mammograms – screening mammograms and diagnostic mammograms – that can be performed, with each providing different angles of the breast. Patients with no breast abnormalities typically undergo screening mammograms, which obtain two different views of the breast. In contrast, diagnostic mammograms are conducted on patients with physical abnormalities, so a variety of views are used. The goal is to always obtain quality films of the breast tissue. However, there are a number of reasons why a radiologist or other physician may fail to properly read diagnostic imaging, many of which have been held to constitute medical malpractice.
In a 2019 case in Florida, a technologist failed to image the plaintiff’s breast lump, and upon a reading of the ultrasound, a radiologist found a benign “skin thickening” of the mass. One year later, the plaintiff was diagnosed with Stage IV breast cancer. A jury found in her favor and awarded her $21,500,000 in damages.
In another 2019 case, a Pennsylvania patient was misdiagnosed with benign calcifications of the breast tissue, which led to her cancer diagnosis being delayed by two years. Even though each radiologist who read the report annually did not determine anything suspicious, a jury concluded that plaintiff’s first doctor was negligent and awarded her $3,350,000 in damages.
But not all mammograms are created equal. Some studies have shown that mammography equipment does not adhere to certain requisite standards and as a result, the image can be compromised. The Mammography Quality Standards Act of 1992 was passed to ensure compliance with certain standards and that specific mammography equipment is able to obtain appropriate magnification, focal spot exposure, and compression in order to confirm the quality of the image. Failure to adhere to these requisite standards can form a basis to a medical malpractice claim.
Failure to Test a Palpable Mass
It is impossible for even the best physicians to rule out breast cancer from a mammography alone. The only way to make an absolute determination is through a biopsy. Some physicians, when considering the history, age of the patient, and clinical signs and symptoms, may determine a biopsy is not necessary. However, the contrary argument is that if the mass is cancerous, it needs to be biopsied as soon as possible so that early treatment can begin.
By way of example, in Massachusetts, the patient’s two breast masses were not biopsied, as the doctor took a “wait-and-see” approach. Eventually diagnosed with invasive ductal carcinoma, the parties settled for $1,350,000 in November 2013. In November 2018, a California plaintiff settled with her physicians for $1,200,000 after her primary care doctor ignored a radiologist’s recommendation to follow-up on the plaintiff’s enlarged lymph nodes, which ultimately resulted in Stage IV breast cancer.
There are also cases in which the patient’s cancerous mass is tested but is incorrectly diagnosed as benign. Maria Pulliam of Illinois visited a doctor upon discovering a lump in her breast in 2010. After an ultrasound determined that the mass was suspicious, a surgeon performed a fine needle aspiration biopsy and a pathologist and laboratory specialist who examined the sample definitively determined it was not cancerous. The surgeon relayed these results to her despite the contradictory findings of the ultrasound. Ms. Pulliam did not discover she had cancerous masses growing in her body until her Stage IV breast cancer diagnosis eight months later. She filed a medical malpractice lawsuit against the physicians and eventually settled out of court for $3.5 million. As her lawyers successfully argued, a fine needle biopsy was insufficient in testing the mass. Rather, a core needle biopsy, which obtains a bigger sample but also takes more issue, would have been more prudent.
Overall, in light of the prevalence of breast cancer among women, it is important for patients, physicians, and attorneys to be mindful of the different perspectives and outcomes for these very common medical malpractice claims. Only experts that are properly credentialed and qualified in the fields necessary to properly diagnose and treat breast cancer should be a part of the case.
