Breast Cancer Misdiagnosis
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 a lawsuit.
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 patient.
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 sampling).
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 of dollars.
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.