New York Breast Cancer Misdiagnosis Lawyers
Breast cancer is a horrific disease that is responsible for killing over
30,000 women each year. While the number of deaths caused by breast cancer
each year is enormous, many more women are saved because a doctor diagnosed
their disease early enough for effective treatment. As a result, the lives
of thousands of women each year rest in a doctor's ability to detect
and treat their cancer. When a doctor fails to detect or misdiagnosis's
breast cancer, the consequences can be disastrous. In some cases, a doctor's
misdiagnosis may have been the result of negligence. When a doctor's
negligence leads to a misdiagnosis, the victim may be able to file a medical
malpractice lawsuit to recoup compensation for damages. At Queller, Fisher,
Washor, Fuchs & Kool, we understand the harm that a misdiagnosis of
breast cancer can cause. As a result, we are committed to helping victims
and their families whose lives have been permanently altered by misdiagnoses.
Our lawyers are determined to help our clients get their lives back on
track and will pursue maximum compensation for them in court.
Have you been diagnosed with breast cancer? Was your cancer initially misdiagnosed?
If so, you may be entitled to compensation for any damages incurred. For
a free consultation about your legal options, call 212-406-1700 or
contact us online.
Breast Cancer is Among the Most Common Life-altering Diseases in the United States
Breast cancer in women is one of those feared, life-altering diagnoses
- one whose high incidence rate means it touches almost everyone's
life in some way. Approximately 12.3 percent of American women will be
diagnosed with breast cancer at some point during their lives, based on
the most recent available data; that is roughly 1 in 8 women. For 2011,
the most recent year for final data, there were an estimated 2,899,726
women in the U.S. living with breast cancer. It is estimated that for
2014 alone there were 232,670 new breast cancer cases diagnosed.
Estimates for 2014 were that 40,000 women would be expected to die from
breast cancer that year. The good news is that death rates have been decreasing
since 1989. This is believed to be due to advances in treatment, earlier
detection, and increased awareness. The bad news is that the number of
American women dying from breast cancer remains shockingly high: for American
women, the death rate from breast cancer is higher than for all other
cancers, except lung cancer.
Proper Testing by Physicians is the Key to Avoiding a Breast Cancer Misdiagnosis
Breast cancer, broadly speaking, may involve the milk ducts or the breast
tissue itself, called lobules. Cancer of the ducts is referred to as ductal,
whereas cancer of the breast tissue is referred to as lobular. Both types
of cancer may be contained - called in situ - or invasive. Methods for
screening and early detection for both types is basically the same: clinical
breast exam, self-exam, and mammography and other breast imaging.
A well-done breast exam performed by a physician is a key component in
breast cancer detection. A gynecologist or other primary care provider
properly performing a breast examination may feel or observe changes in
the breasts that warrant further testing. So important and sensitive is
the breast exam that a "normal" mammogram - one in which nothing
suspicious for cancer is noted - does not obviate the need for further
workup by a breast specialist when the examiner notes something suspicious
during the clinical breast exam. That means for palpable abnormalities,
those capable of being felt, the breast examination is more accurate and
important than the mammogram.
Not all lumps - masses or lesions that are felt in the breast - are cancer.
Most are not cancer, many lumps are simply benign cysts, which are very
common and generally not related to breast cancer. Of particular concern,
however, are lumps which do not come-and-go, (especially with changes
in the menstrual cycle), get larger or grow over time, are hard, or feel
fixed to the tissue.
The mammogram itself is an x-ray study of the breasts. The modality's
strength is its ability to detect calcium deposits, referred to as calcifications.
While usually benign, calcifications may also be an early sign of breast
cancer and can be viewed by mammography before the cancer forms a palpable
mass allowing for earlier treatment. Of particular concern, are so-called
microcalcifications grouped in a cluster.
Mammography varies between screening studies and diagnostic studies. The
screening mammogram is the standard two-view test performed annually.
The breasts are x-rayed from two views: cranial-caudal (top-down) and
medial-lateral-oblique (roughly 45 degree angle from the center of the
chest out towards the armpit).
Diagnostic mammography is additional x-ray study performed because of some
suspicion or abnormalities. Additional views may be taken, such as true-lateral,
where the imaging is done horizontally across the breast. More importantly,
perhaps, are magnification and compression views done to more specifically
view an area of question. The compression views are particularly important
because many times a cancerous mass will not press out under pressure
whereas a non-cancerous mass may.
Sonography is also an important screening tool. Breast cysts are common.
Essentially, they are fluid-filled masses that may come and go during
a woman's menstrual cycle. They are themselves benign and generally
insignificant to the woman's health. It is, however, difficult to
distinguish between cysts and cancerous masses on mammography. Sonography
is performed by sending sound-waves through the breast tissue. The fluid-filled
cysts will react differently to the sound-waves than will the cancerous
mass. Sonography, therefore, is important to tell the difference between
a benign cyst and what could be a malignant mass. It is also important
in evaluating women with dense breast tissue. Such breasts are more difficult
to image with mammography, because the dense tissue appears as large white
areas which may obscure a mass which would also appear as a white area.
MRI may also be used in breast cancer detection, though its value remains
limited. This is because it may produce uncertain findings and cannot
detect calcifications. Under specific circumstances, however, breast MRI
may be helpful in obtaining more information about a suspicious area or
one that is already known to be cancerous. For example, MRI may be used
to evaluate a palpable mass that cannot be seen on sonogram or mammogram.
It may also be used to further evaluate an area in dense breast tissue.
MRI can also be used to locate a cancerous mass in the breast, known to
be there due to cancer cells in an axillary lymph node (arm pit), that
is not felt or revealed on other imaging. This modality may also be useful
to determine whether a breast cancer is "multicentric," meaning
it is not limited to one area. Whether a cancer is mulicentric affects
the treatment options. This is especially important for invasive lobular
cancers which are more likely to be multicentric. MRI should be used,
according to the American Cancer Society, when breast cancer is detected
in one breast to evaluate the other breast for cancer. MRI is also useful
for women with silicone breast implants, because it can detect silicone
leakage from an implant.
Once a suspicious area is noted via breast imaging, the next step is generally
breast biopsy. Testing such as clinical breast exam, mammography, or sonography
does not actually diagnose cancer. Rather, it is only with a biopsy that
breast cancer is truly diagnosed.
Basically, there are few different types of breast biopsy. One is a fine
needle aspiration biopsy in which a thin needle is inserted into the area
and fluid or tissue is aspirated - pulled into the syringe - and then
looked at by a pathologist under a microscope to see if cancer cells are
present. If the area to be biopsied has a lump or other mass that can
be felt, the doctor can locate the area by feel and perform the biopsy.
If the biopsy area does not contain a palpable mass or lesion, the doctor
can perform an ultrasound-guided biopsy or stereotactic needle biopsy.
For an ultrasound-guided biopsy, the doctor uses breast ultrasound to
guide the needle to the area to be biopsied. In stereotactic needle biopsy,
computers use mammograms to map the exact location to be biopsied.
Another type is a core needle biopsy. Again, a needle is inserted into
the area of concern. This needle, however, is larger than with fine needle
aspiration and is used to draw cylinders or "cores" of tissue
from the area. The needle may be inserted multiple times to sample different
areas of the lump or area being biopsied.
A different biopsy technique is the vacuum-assisted core biopsy. A small
cut in the skin is made to allow a hollow probe to be inserted. The probe
is guided to the biopsy area via x-rays, ultrasound or MRI. The probe
then draws in tissue from an opening in its side, where a rotating knife
in the probe then cuts off a tissue sample.
A surgical or open biopsy is another option, in which an area of breast
tissue is surgically removed. There are two types: an incisional biopsy
in which a part of the area is removed for analysis; and an excisional
biopsy in which the entire area is removed along with a border of normal
tissue. Prior to surgical biopsy, a wire may be placed via a needle to
aid the surgeon. This is particularly useful when the mass or lesion cannot
be felt, but looks suspicious on mammogram. Once the tissue is removed,
the surgeon may place and leave a "clip" or other marker in
the area for future reference.
Many Breast Cancer Misdiagnoses are the Result of a Doctor's Negligence
Many women are denied the benefits of treatment advances, early detection
and increased awareness due to the negligence of the very doctors entrusted
with their health and well-being. There is no real argument that early
detection saves women's lives and gives them the best chance of less
invasive, less drastic treatments. It is, therefore, truly tragedy piled
on misfortune when the very physicians relied upon to screen and detect
breast cancer fail in their task.
Medical negligence - malpractice - may occur in this context when a gynecologist
or other primary care provider fails to either detect or properly follow-up
a suspicious breast mass. Too often our attorneys have seen cases in which
a woman's doctor failed to recognize a concerning mass, or, perhaps
even more troubling, failed to obtain the necessary work-up for a suspicious
mass. In particular, our attorneys have unfortunately seen too many instances
in which the physician notes a breast mass during a clinical breast exam,
but then either decides simply to "watch" it or has his or her
suspicions satisfied by mammography that does not note a suspicious mass
or lesion. By way of example, our attorneys won a substantial award for
the family of a mother of two in her forties who died from breast cancer.
A suspicious lump was discovered during a clinical breast exam but was
not biopsied. In another case, our attorneys obtained a significant award
for a woman in her sixties who endured mastectomy, chemotherapy and radiation
therapy, whose primary care doctor noted a suspicious lump during a breast
exam but just decided to "watch it" after the mammogram was
read as "normal." Simply, if a suspicious mass or lesion is
felt on a breast exam - is palpated - there must be referral to a breast
specialist for further work-up even if tests like mammography or sonography
do not note a suspicious area.
Our attorneys have also seen cases of medical malpractice where the mammograms
or sonograms were mis-read; meaning the test showed suspicious areas or
markings which needed further work-up but the radiologist interpreting
or "reading" the tests failed to note them. In many cases our
attorneys have obtained substantial awards for women or their families
where the mammograms, for example, showed concerning signs that were mis-read
by the radiologist. In one particularly egregious case, the radiologist
admitted, when pressed by our lawyers, that the mammogram indeed showed
a suspicious lesion that should be biopsied, but he disregarded it because
he assumed it was merely scar tissue from a prior biopsy. The story fell
apart, however, when the radiologist also had to admit that prior mammograms
did not show this supposed "scar tissue." These cases are particularly
worrisome, because one of the best opportunities for early detection has
been missed and the physician who ordered the test in the first place
could be mis-led as to the proper follow-up.
Did Negligence Cause Your Misdiagnosis?
While a misdiagnosis can be grounds for a lawsuit, this is not always the
case. In order to have a valid case, the patient whose breast cancer was
misdiagnosed must be able to prove that their doctor acted negligently.
To prove negligence, the injured patient must be able to show that the
doctor violated their duty of care. A duty of care is a legal obligation
an individual has to act with a certain degree of caution when performing
potentially dangerous tasks. In the medical field, doctors have a duty
of care to uphold the acceptable standard of care of the medical profession.
Upholding the acceptable standard of care means that a doctor must us
the same degree of caution as another competent physician in the same
practice area. For instance, if patient displays certain signs and symptoms
of breast cancer, and most other physicians would order a mammogram, the
patient's doctor is expected to order a mammogram in order to uphold
their duty of care. If a doctor fails to order a mammogram in the aforementioned
situation, they may have violated their duty of care and therefore acted
negligently. Negligence is not, however, in and of itself grounds for
In addition to proving negligence, sick patients must be able to show that
their doctor's error was directly responsible for their misdiagnosis.
Essentially, if a doctor acts negligently, but that negligence did not
contribute to their misdiagnosing the patient's breast cancer, they
cannot be found liable. Causation and negligence, while necessary for
a valid claim, do not necessarily present the sick patient with the opportunity
to recoup compensation through a lawsuit.
While causation and negligence are necessary for a medical malpractice
lawsuit, the patient or their family must also have suffered damages to
have a valid case. Damages are any economic or emotional loss caused by
the sickness. For instance economic damages can range from lost wages
to medical bills caused by the patient's cancer. Non-economic damages
are any pain and suffering caused by the misdiagnosis.
How do you Determine Liability in Breast Cancer Misdiagnosis Cases?
The American College of Radiology developed BI-RADS ("breast imaging
reporting and data system") as a reporting system to facilitate and
standardize communication from the radiologist reading a mammogram to
the gynecologist or other doctor who ordered the test. It is a numerical
system from 0 to 6. BI-RADS Category 0 means additional imaging evaluation
or comparison to prior mammograms is needed. This is used when a possible
abnormality is not clearly seen, thereby warranting further tests. BI-RADS
1 is "negative," meaning there is nothing abnormal to report.
Category 2 is benign, meaning there are findings but they are not suggestive
of cancer. Category 3 is used for a probably benign finding; there is
a very high chance that what is seen is not cancer but the patient should
return sooner than usual for follow-up imaging. With a BI-RADS 4 there
is a suspicious abnormality, meaning there could be cancer and a biopsy
should be considered. BI-RADS 5 denotes a finding that is highly suggestive
of malignancy; that is, based on the appearance there is at least a 95%
chance there is cancer and biopsy is strongly recommended. Finally, Category
6 is used to denote a known biopsy-proven malignancy. This is useful,
for example, to observe how a cancer is responding to pre-operative chemotherapy
and whether it is "shrinking."
If a radiologist mis-reads a mammogram, an inappropriate BI-RADS category
will be assigned and presented to the ordering physician. That doctor
then, relying on the wrong interpretation of the mammogram, will not properly
counsel the patient or initiate proper work-up and treatment. This may
then lead to a delay in treatment and injury to the patient.
Malpractice cases involving breast cancer present several complicated issues.
The first is always was there a departure or deviation from the generally
accepted standard of care. Did the doctors involved perform as was reasonably
expected by other doctors under similar circumstances? The second issue
involves a doctor's departure from a common standard of care. Did
that departure proximately cause injury to the patient? Basically, in
this context, did the doctor's negligence deprive the patient of a
substantial opportunity for a better outcome. If, for example, the patient
on diagnosis had an advanced stage cancer requiring a total mastectomy,
removal of lymph nodes, chemotherapy and radiation therapy, but the cancer
was "missed" at an earlier stage, when the patient had the chance
to avoid mastectomy, lymph node removal, chemotherapy and radiation therapy,
then it can be said that the malpractice proximately caused injury to
The last, major, issue relates to the damage to the patient. Plainly, if
the patient died there has been significant damage or injury. Where the
patient survives, the injuries or damages relate to treatments that could
have been avoided. For example, the woman may have avoided having a total
mastectomy if her cancer had been detected earlier. It may also be that
with earlier treatment the patient could have avoided having axillary
lymph nodes (in the armpit) removed (called an axillary dissection or
The delay in diagnosis may also result in a difference in the stage at
the time the cancer is identified, which in turn changes the patient's
risk of recurrence and chance of survival. Breast cancer is staged from
0 to IV, with sub-divisions within the stages. Differences in the stages
are important because the stage guides the treatment options, as well
as predicting the patient's risk of recurrence and prognosis for survival.
If a patient's cancer has moved to a higher stage during the delay
in diagnosis, her risk of recurrence may increase and her chances for
survival decrease. This too, would be considered injury and damage.
Hiring Experts is Essential to Proving Breast Cancer was Misdiagnosed
Breast cancer cases involve many different types of experts to prove the
case. A gynecology expert may be needed to discuss the standards applicable
to clinical breast examination and follow-up. A radiologist, preferably
one who specializes in women's breast imaging, is needed to evaluate
the mammograms or sonograms. A breast surgeon or surgical oncologist is
then needed to describe how, if at all, earlier treatment would have possibly
avoided the patient's ultimate outcome, whether that was more extensive
treatment or death. The breast surgeon or surgical oncologist will also
evaluate how if at all the patient's survival rate was affected by
the delay in diagnosis. If there are questions concerning the chemotherapy
or radiation therapy, additional experts may also be needed. At Queller,
Fisher, Washor, Fuchs & Kool, our attorneys will employ numerous experts
to help our clients secure the compensation they may be entitled.
We Handle Wrongful Death Claims for Breast Cancer Misdiagnoses
Unfortunately, misdiagnoses of breast cancer are often fatal. As a result,
the families of deceased patients may be able to file a wrongful death
lawsuit against the doctor who misdiagnosed their loved ones. In a wrongful
death lawsuit, a victim's family can receive compensation for any
damages incurred by their loved one's death. Families may be able
to receive economic damages for lost wages, cost of medical bills before
death, and funeral costs. Furthermore, families may be able to receive
compensation for non-economic damages, such as pain and suffering before
death, loss of consortium, and loss of parental guidance. At Queller,
Fisher, Washor, Fuchs & Kool, our wrongful death attorneys have been
handling cancer misdiagnoses cases for over 50 years. We understand the
pain that is caused when a doctor's error causes a loved one to lose
their life. As a result, we strive to ease the financial burden created
by a loved one's death. Our firm has obtained a number of successful
verdicts and settlements, many of which have numbered in the millions
Has your family recently lost a loved one to breast cancer? Was your loved
one's cancer initially misdiagnosed? If so, you may be able to recover
compensation for your family in a wrongful death lawsuit. For a free consultation
to see your family's options, call 212-406-1700 or contact us online.