Malpractice Lawsuits for Misdiagnosis?

Hi sirenator,

I'm so sorry to hear about your experience, but what you've said doesn't necessarily suggest malpractice (at least not yet).  For instance, when you say they "diagnosed benign fibroid" how did they reach that conclusion?  Was it based solely on your age?  Did your doctor do imaging?  Was there a biopsy and a pathology report?  Unfortunately, a misdiagnoses doesn't necessarily mean malpractice... 

Your first hurdle is "was their conduct negligent"? in some places, gross negligence is required (rather than simple negligence)--I don't know about Virginia. You'll need to compare the care you got to the "standard of care" for other women who present as you did.  And you'll need to ID a specifically negligent act or acts by particular practitioners.

Your second hurdle is proving your damages (that is, that the result would have been different somehow, had the negligence not occurred).  BC is (often) a relatively slow-growing cancer...I suspect you'll hear that no one knows whether the 6-months would have made a difference in either your treatment or your outcome.

In some jurisdictions, additionally, the damages must be "foreseeable" to the the doctor or practitioner who was negligent.

Those are fine lines to draw, and you'll need a skilled attorney to help you sort out whether you have a viable case in your jurisdiction. 

If you decide (after reviewing the facts with a lawyer in Virginia) that you don't have a malpractice case, you may still have a complaint to file with the hospital(s) where the doctor has privleges and /or with the state medical licensing authorities.

I'm so sorry that you're having to deal with this, on top of the many details thrown at you with a new bc diagnoses.  I would not discuss lawsuits with your doctors at this point.  Leave that to later.

But do a couple of things.  First, everyone who ends up here is told to compile and keep her own medical file.  So you should ask for copies of your pathology reports, surgical reports, imaging reports, etc, as well as your chart from each of the doctors/pracitioners who treated you.  This won't surprise them at all.  Cancer patients do this all the time.

Second, decide who you want on your medical team now.  Suround yourself with doctors in whom you have confidence.  There is no reason to discuss a potential lawsuit with either your new or your old doctors at this point.  (The only exception would be if a new doctor brings it up on his or her own (without questions on your part)--and if they do, ask their advice and record it carefully.  If your care represents (in their view) egregious malpractice, they may well reccomend you to a local lawyer or other resource.)

At any rate, if your lawyer decides you may have a case, let them sort out how to proceed.  Please, please concentrate on your own care. 

We're sorry to see you here...but glad you found us!

LisaAlissa

I have questioned my original diagnosis throughout my 2 years of ongoing treatment. Although I suspect it's the other way around for me. Especially after the pathology report from my bi lat. No signs or evidence of a tumor, nothing except normal healthy breast tissue. Both sides. And I had a 5.8 cm mass. My case has been riddled with inconsistencies and questionable information from the get go. I've considered further investigating, but at this point, to find out otherwise would be waaaay to much to handle... My suggestion - make damn sure you HAVE cancer before you do anything!

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2526983/?tool=pubmed

my case is a little different- i went to 1 dr in AZ, who gave me a birads of 3- prob b9, with instructions to follow up. i had moved shortly after to TX, tried following up with a dr in a clinic but she really didnt take my concerns seriously. the last visit (6 mo ago) she didnt look at or feel my breast at ALL and said it was a breastfeeding issue! now did she drop the ball? suing her is not what i want to do- i wanna go 2 her office and warn ppl going if they take their health seriously find another dr!

jane- my 1st drs said to follow up and the new dr didnt see the need. (because i was breastfeeding @ the time of 1st visit they said i can do biopsy later) but later never came. would you think that i could show damages that the cancer has spread and i am stage 4? i think any lay person could make the connection that waiting for so long could have directly given the cancer time to spread right? i mean it was almost a freakin YEAR! could you imagin not getting treatment til a yr after your dx?

this is such a sad story. we are dealing with life here. we must enforce the law to its full extent.

auto insurance quotes 

I think that the spammers that write something to make you think that they are legit, and then post their links to some totally irrelevant website (auto insurance quotes, really????) are among the worst.  Not that any spammers are good. 

I reported the post too.  One or two more reports and we'll be rid of this garbage.

I looked into it myself.  I was also misdiagnosed.  I went in with a lump and they did a mammogram and ultrasound and told me it was just a benign cyst.. 10 months later it was twice the size.  I went in and requested they remove the "benign cyst".  The surgeon requested a new mammogram/ultrasound.  Again the same facility insisted it was nothing to worry about.  I had them attempt to drain it anyways.. turns out it was a solid stage 2 cyst. 

When I checked with the lawyers using the free legal resources available through the ACS, they told me it wasn't worth pursuing in Texas.  The lawyers I spoke to sent me an article about a man who had all 4 limbs mistakenly cut off when he went in for a gall bladder removal... He won his case and got less than $100,000 due to the limitations the malpractice laws have here.

I am suing the doctor I saw a year ago when my family doctor referred me after an ultrasound of a palpable lump showed a 1 cm mass. She referred me to a renowned breast centre in downtown Toronto. The doctor called me in, palpated my breast, told me he knew exactly what it was: a benign fibroadenoma. He said it would fluctuate in size, and eventually go away. He gave me a pamphlet on benign breast disease and sent me on my way. He was the expert, why would I question it? He did none of his own imaging. He did nothing more than feel my breast. I trusted him because he was a specialist and he'd know, right? He said it would fluctuate in size, so I didn't notice the growth really.

Several months later, I started bleeding from my nipple. That led to a mastectomy with a 10.5 cm lump, stage 3 IDC (one node positive). I start chemo on Friday. Because of the percentage of DCIS in the mass, my surgeon believes that if this had been found sooner, I would have had 1 cm of DCIS, meaning a lumpectomy alone, maybe rads. 

I've also discovered that he's done this to many other women. At least one woman died. That's why I'm suing and my lawyer thinks I have a good case.

What did you decide? I'd like to hear an update. 

Hello,



I went to my doctor in March 2011 for a lump in my right breast. My dr sent me for a mammogram and an ultrasound which was done too just because were the lump was located it was hard to see it on the X-rays.



After no news from my doctor I assumed that it was just a cyst which my dr kept telling me it was. After a year later my lump was starting to bother me when it was supposed to be my monthly period (had a hysterectomy 3 years ago). I made an appointment to see my dr for my yearly physical, and while he was going through my file he turn to me and says " oops I should have sent you for a biopsy". I was stunned. I was scheduled pretty fast for the biopsy.



After a month of waiting and waiting for the dr to call me regarding my results, I finally called and asked the nurse if my results came in. After telling me she can't tell me over the phone the dr came on to the line to tell me that I have breast cancer. I was referred to a breast cancer surgeon and she told me that I had stage 3 breast cancer. I was given the option of a lumpectomy or a mastectomy. After telling me that the chance of the cancer coming back was greater I have decided to go with the mastectomy with reconstruction surgery with a tummy tuck. During my surgery they removed 17 lymphoids and 12 of them were cancer. They also found another lump right behind the first one I found. After 2 months of recovery from surgery I had to have 6 rounds of fecd chemo and 28 radiation treatments. I am on number 8 of my radiation treatment and it is a walk in the park compared to the chemo.



After spending so much time at home alone I decided that I should try calling a lawyer to see if maybe I have a case. It isn't the money that I am going after, its the fact that he neglected to tell me a year ago that I needed a biopsy. Would I have had to go through the extreme if he had just sent me for the biopsy. So after telling the lawyer my story he had me in his office to tell me how he has to proceed with my lawsuit. He must think I have a case since he has not asked me for a dime. I know I will have to give him a percentage but like I said money isn't the issue.

We are also not "sue-happy" as we work in the medical field ourselves. We realize it`s called "practicing" medicine - there are few absolutes, but I feel my wife`s diagnosis goes beyond that, and it`s a mistake that is ultimately going to take her life. In `08, after biopsy & mastectomy w / sentinel node biopsy, she was diagnosed with DCIS. You were lucky, no further treatment or follow-up necessary - have a good life, she was told. Then in Nov 2011, she began having back pain. A spine specialist ruled it "arthritis" after an MRI, and none of his treatments were working. Keep in mind, that by this point she was walking on a cane, could not drive, work, or care for our children. In Jan 2012 I took her to the ED where we work, and a repeat MRI was done = metastatic bone disease & compression fractures throughout her spine & pelvis. Further imaging showed a large lymph node mass on her mastectomy side, as well as lung / chest wall mets. Treatment began immediately, of course, with a biopsy being obtained from one of the bone sites. We go for an appt. one day, about two weeks after the diagnosis, and the surgeon who did the mastectomy is in the oncologist`s office. They proceed to tell us that the original slides from the mastectomy were pulled for comparison to the bone biopsy, and that it was discovered that her cancer in `08 was mistakenly ruled in situ, when in fact there was a 3mm invasion. We were told that the pathologist responsible had been gone for some time from the hospital. We were focused on the treatment, and put this on the back burner. About a week later, we got a registered letter from the pathologist; he was working at another area hospital, had been informed of our situation, and offered to meet with us. We did not respond, but it was obvious everyone that spoke to us about this was scared. Throughout 2012 my wife went through treatment, and in August was declared in remission. But in January 2013, brain mets were discovered. Facing this, my wife has told me that if / when something happens to her, for me to explore filing a suit. Not as a retaliatory measure, but to ensure future care for our autistic son (we have a 7 & 5yo). She is receiving her care at the same hospital, and we have nothing against her current team, nor the surgeon - it`s the pathologist, and to a lesser extent, the spine specialist who delayed her treatment by three months.  I don`t know what to do. I feel like I should be angry about this, but right now I`m just heartbroken and not sure I have it in me to fight. But I do want to honor her wishes, not let this be in vain, or let statute of limitations run out. Any insight, perspective, or advice you ladies could provide would be greatly appreciated.

Obviously there is a serious & significant problem with proper (and timely!) diagnosis. I too have considered legal consult after I get through treatment, but realize in terms of time, especially for those of us with young families,and mental health,it may not be worth it. I would be more interested in helping with awareness training (for med. pros. as much as for patients) so maybe we can start "catching it early" which is what WE all seem to try to do, only to be "shot down" by one or more docs. I am very new to all this, but appreciate this forum as I'm usually feeling SO alone. Forgive me if I get the abbreviations wrong! In August 2012 a small spot was seen on yearly mammo so I got call back for deep comp. Mammo & sonogram. Sounds like a logical choice for a 42 year old. After radiologist reviewed images he recommended I wait 6 mts then have another mammo. He was sure it was nothing. then I asked about the risk of waiting if it WAS to be cancer, he said chance of it even being cancer was no more than 1 percent. I told him I tended to be worrisome but didn't that mean 1 in 100 would be cancer & what if I was that 1?? He said, "I probably shouldn't tell you this, but if I'm wrong you can sue me," then quickly turned on his heels and walked out! I consulted my obgyn, my primary, and the gen surgeon my primary told me "specialized" in breasts. (I now know there is really no such thing). All of them agreed waiting was reasonable, so I decided to control my worry & wait. I made it only 4 mts. before returning to surgeon w a lump that had grown very palpable to me! He agreed it had grown but assured me that it felt perfectly round and cancer wouldn't grow that fast. Regardless, we agreed it didn't belong so he did a lumpectomy. (W/o any more imaging and unguided, which I thought nothing of at that uneducated time!) He assured my husband as I was in recovery that he got it all, it was perfectly round, it wasn't cancer. 2 weeks later I sat in his office as he told me he was as shocked as me, but it was cancer. That was the end of January. Here I sit (after going immediately to breast center at a renowned university hospital) recovering from BMX with expanders for reconstruction after I complete 5 mts. of chemo & about same of radiation. Turns out right breast had more extensive tumor, triple negative IDC grade 3, & left had hormone responsive IDC very close to chest wall.thankfully,only 1 lymph node was involved. Although the pain & discomfort are all too real, it's all happened so fast, I keep waiting to wake up from a bad dream. I'm sorry to have gone on so long, and thank all of you for posting and allowing me to feel I'm not so alone!

I would like to help others as well.
The choice was not so hard for me but maybe it's easier where I live. I don't know if it works the same way in your country. In Denmark everyone can complain of both the healthcare provider and of the treatment. It is free and is not taking place in court.

Grover - you are not alone feeling alone. I know the feeling so much. But I feel it gets better. For me the feeling was also much worse at the time when I felt physically ill because of the treatment. It will get better.

I havnt read all the responses. I spoke to a lawyer. He agreed that I had beenscrewed by a dr. He looked at all myrecords, he sent my to a radiologistand had them review it. Ultimatley it wasnt awinnablecase. Yes I suffered but I wasnt near death due to drs negligence.

Backin2009 i was sent backfordiagnostic mammo and US. I still clearly remember him having his US wand onmy right upper breast. He said it was nothing. Thenext year I went to different facility. Got postcard backthatmammowas negative. Fast forward to july 2011 Ifound lump in samespot hehadhisUS wand.



I contacted lawyer. A paralegal took my info down. Later a nurse called meback. Shegot my records and films. Then I met with lawyer. He specialized inmalpractice. He gotbacktome in about a month. Since I wasnt near death, it would behard towin.

I got through my treatments. I was angry.

Last fall I filed a complaint against the two radiologists who hadevery chance to diagnose mybc. Took sixmonths, but theyfinally gotbackto me. No action wouldbe taken, but thankedme for making them aware.



It was goodfor me to know these docs knew they screwed up. I wasnt about to go to there office to tell them.

Will pm you name of one of my docs