The Failure to Diagnose Breast Cancer Case

According to the American Cancer Society, 192,370 women in the United States will develop breast cancer this year. With routine self breast examination, yearly mammograms, and proper surveillance, we expect that if we develop breast cancer it will be detected at its earliest stage and with treatment, our chance for survival and cure will be excellent. But what happens when our mammograms are misread or our doctors make mistakes? During any given year a certain number of women find themselves in that very situation. The damage having been done, their only course of action may be litigation to compensate them for their harm and to prevent the catastrophe from occurring to other women.

WHAT DO I NEED TO PROVE?

To maintain a successful medical malpractice case, it will be necessary for the victim to prove that the doctor, nurse, or other healthcare provider who cared for you deviated from the accepted standards of medical care for his or her profession; in other words, that the doctor or other provider was negligent and/or careless. You must also prove that the doctor’s negligence caused your resulting harm. Because the doctor did not give you the disease and your claim involves the delay in diagnosing your condition in a timely fashion, proving “causation” is usually the more difficult aspect of your case. The result of the negligent delay can be proven by showing the progression of the disease from one earlier stage to the next, and comparing the treatments necessary at each stage with the statistical survival rates from one stage to another. The damage claim you make is one that revolves around your “increased risks”.

HOW DO I PROVE MY CASE?

Your lawyer should hire medical experts in the same field as the physician or nurse involved in the care; these experts can offer opinions to a reasonable degree of certainty (the legal standard that applies to these types of cases) that the care was “substandard.” Thus, for example, cancer specialists can give opinions regarding the harm caused by the diagnostic delay. Most of the trial time in this type of case is taken up with the testimony by the competing experts for the person suing and the person being sued, with a jury determining the outcome.

WHAT DO I NEED TO HAVE MY CASE EVALUATED?

You will need all of your medical records. These must include the records of the doctor or other healthcare professionals who misdiagnosed your condition, as well as the records of the physicians who ultimately diagnosed your condition and provided you with care. Those records should be reviewed by an experienced medical malpractice lawyer, and experts who can opine about the quality of the care and the effect the substandard care had on your treatment and your chances of survival.

WHAT CAN I EXPECT IF I HAVE A GOOD CASE AND DECIDE TO SUE MY HEALTHCARE PROVIDERS?

Doctors, hospitals and other healthcare providers aggressively defend against medical malpractice or medical negligence cases, and many of these cases do not settle and go to trial. You can expect that it will take a few years before your case is listed for trial. During that time, you will be asked to answer written questions regarding your personal history, your medical care, your work and family history, other lawsuits you may have been involved in, and other questions. You will be asked to sit for a deposition where you will be asked questions by the defendants’ lawyers, and your testimony will be transcribed and/or recorded on videotape. There will be meetings with your attorney to prepare you for your deposition and for court. Photographs or videotapes of you, your treatment, and its effects may be necessary. You can expect that your family and significant others may be questioned as well.

WHAT WILL HAPPEN TO THE DOCTOR IF I WIN MY CASE?

A medical malpractice or medical negligence case is a civil action for money compensation. It is not a criminal case and does not typically involve punishment for wrongdoing. A money award to compensate for your harm is the only outcome of such a case. Neither the doctor’s license nor his ability to practice is affected. Any settlement or verdict against a physician is, however, a reportable event under the National Practitioners Data Bank. While not open to the public, this data bank can be accessed by hospitals and health care providers when reviewing a physician’s application for privileges or hire, and does remain on the physician’s record.

WHAT SHOULD I DO IF I THINK I HAVE BEEN THE VICTIM OF MALPRACTICE AND MY CANCER DIAGNOSIS DELAYED?

You should consult an attorney who handles medical malpractice cases in the state where you received the negligent care. Because these cases require special expertise and experience, you should make sure you locate an attorney with the necessary experience in this area of the law. You will need to gather copies of your medical records so that they may be reviewed by expert physicians to determine if there was substandard care that caused you harm, and you must act quickly because there are statutes of limitations, which limit the time within which you can make a legal claim (in many states, such as Pennsylvania, the statute is two years; in some it is only one year). Make sure you document your “damages” by keeping a record of your treatments and taking photographs of yourself in the hospital and at home following surgery, radiation, or chemotherapy treatments.

This handy Pennsylvania medical malpractice tip is provided by the Philadelphia medical malpractice law firm, The Law Offices of Judy Greenwood, P.C., at 1800 JFK Boulevard, Suite 1500, Philadelphia, PA 19103, www.greenwoodlawoffice.com, email JudyWynnewood@aol.com.