The term “failure to diagnose” (breast cancer, in this case) is, essentially, a legal term. It is used to describe any time breast cancer is misdiagnosed (as a cyst, etc.) or if there is any significant delay in diagnosis.
In other words, the doctor is guilty of a failure to diagnose, if the patient presents with living active cancer cells and anything other than a cancer diagnosis is given.
According to the American Cancer Society, approximately 1 in 8 U.S. women will develop invasive breast cancer during their lifetime.
And 1 in 36 faces the chance of dying from breast cancer.
Thankfully, death rates from breast cancer have been on the decline since about 1990, with women younger than 50 experiencing the greatest decrease. Such decreases are primarily attributed to an increased awareness that younger women are at risk, resulting in earlier detection.
As I discussed in Delayed Diagnosis of Breast Cancer, early detection is vital in a woman’s fight against breast cancer.
It is critical that a physician test for breast cancer early if there is any reason for doing so. If a doctor fails to recognize, misdiagnoses signs or fails to conduct proper breast cancer tests, a woman may have a valid medical malpractice claim for failure to diagnose.
Failure to Recognize Signs of Breast Cancer
Signs of breast cancer can include redness of the breast, a lump in the breast, swelling and thickening of tissue and/or breast pain. A doctor may dismiss such complaints as simple irritations or claim that a lump is “nothing to worry about” or that woman simply has “fibrocystic breasts” and failure to order appropriate additional tests is all too common.
When a physician fails to diagnose cancer in a timely fashion, the cancer is given the time it needs to advance to a more serious stage. When breast cancer is discovered, the later the stage, the lower the survival rate. Meaning that a doctor’s failure to diagnose breast cancer early or follow up on suspicious symptoms can literally put a woman’s life at stake.
While a breast cancer patient can’t sue her doctor merely due to her development of breast cancer, a patient can bring a medical malpractice claim for the increased risk of harm resulting from the failure to diagnose and timely treat the cancer.
Most commonly, a physician’s failure to diagnose breast cancer is due to:
- Failure to recognize or take seriously common signs of breast cancer;
- Failure to order proper tests;
- Failure to read radiology reports correctly; and/or
- Failure to obtain lab work.
It is important to realize that a victim alleging a failure to diagnose has the same burden of proof as in any other medical malpractice lawsuit. The patient must establish the following four elements:
- That the doctor had a duty to timely diagnose the cancer;
- The breach of that duty by the physician;
- Injury to the patient; and
- The injury must be causally related to the physician’s breach (for example, a more advanced stage of cancer was reached than should have been if the cancer was timely diagnosed).
Once all of these elements are present, a lawsuit for a failure to diagnose breast cancer can be brought.
Countless variables affect the success of a medical malpractice case, including the stage of breast cancer, spread of disease to other organs, potential treatment including chemotherapy and surgery, family history, and general medical condition. All of these issues must be explored by an experienced medical malpractice attorney in order to be successful in a patient’s claim for failure to diagnose breast cancer.
Attorneys Who Specialize in Failure To Diagnose
As I discussed in Breast Cancer Medical Malpractice Lawyers: Tips, the success of your breast cancer medical malpractice claim is greatly dependent on the attorney you select to represent you.
Medical malpractice claims require knowledgeable attorneys with the experience and resources necessary to properly evaluate, prepare and aggressively defend your case.
An attorney who focuses their practice on medical malpractice cases will have a significant advantage when dealing with defense attorneys and insurance companies in settlement negotiations because they can use the leverage of their previous successes.
In addition, unlike other types of personal injury cases, the facts necessary to win a failure to diagnose case are based on medical records and the testimony of medical experts. Meaning your attorney must understand the facts of both medicine and the law in order to properly prepare expert medical witnesses, whose testimony will be vital to your success.
If settlement is not forthcoming and your case proceeds to litigation, your attorney must ultimately explain both the medical and legal issues in your case to the jury. Receiving the largest medical malpractice settlement possible is greatly dependent upon having an attorney that has both the experience and track record to represent your case.