The No. 1 reason patients give for filing suit against their physicians is failure to diagnose a disease, such as cancer, according to researchers studying medical malpractice claims in the U.S., Canada, France and Australia.
The Royal College of Surgeons in Ireland found that between 26 and 63 percent of all medical malpractice claims can be traced to missed diagnoses. Charlotte medical malpractice lawyers recognize that any time a proper diagnosis is missed, it creates a situation wherein patients may miss out on potentially life-saving treatments. They may have to later endure more painful and invasive treatments than they otherwise would have if the doctor had caught their condition sooner.
In order to win in these instances, however, the patient must show a strong causal link between the missed diagnosis and some injury suffered as a result. This was where the plaintiff in the case of Mammarella v. Evantash, M.D., et al. failed. In the Delaware Supreme Court’s recent review, the court affirmed an earlier summary judgment in favor of the defense, finding the plaintiff failed to present the necessary expert witness testimony that would have solidified her case.
There was no question here a diagnosis was missed. The issue was whether the treatment options were severely limited as a direct result of that missed diagnosis. Would the patient have had to endure months of painful chemotherapy sessions had the doctor diagnosed her earlier?
The court ultimately found the evidence to be inconclusive.
According to court records, the plaintiff underwent an annual mammogram screening in October 2009. The radiologist noted two nodules (or raised bumps under the skin), measuring about 6 millimeters each. (Later evidence indicated there was only one nodule.)
The patient was referred to a second radiologist, who provided follow-up screening three days later. He indicated there was no evidence of cancer, and instructed her to return for an exam the following year.
That report was sent to the patient’s OBGYN, who called the patient to say she didn’t think waiting a full year was wise. She advised her to return in six months.
In April 2010, the patient returned. The nodule had grown to 8 millimeters. A biopsy was performed. It was breast cancer. Doctors recommended a lumpectomy, followed by radiation and possibly chemotherapy. The tumor was in fact 11 millimeters. She was diagnosed with Stage I breast cancer, and it was recommended she undergo three months of chemotherapy.
The treatments were, as the patient later described it, “Disfiguring, disabling, painful and fatigue-inducing” – far more so than radiation alone.
In her subsequent lawsuit against the radiologist who told her she didn’t have cancer, she alleged that she would not have had to undergo chemotherapy had he diagnosed her correctly in the first place.
The problem was that her expert witness testimony did not support this. In order to establish the claim, she needed to offer sufficient evidence of a causal link between the six-month delay in diagnosis and the requirement that she undergo chemotherapy.
However, the only one of her four expert medical witnesses testified regarding causation of the treatment, and he indicated that size of the tumor was not the sole consideration in determining a treatment plan. Thus, he could not say with certainty that doctors would not have chosen to recommend chemotherapy for a patient with a 6-millimeter tumor. He indicated that had the cancer been diagnosed earlier, it would be “pure speculation” to assume that doctors would only have recommended radiation.
Thus, the trial court granted the defense a summary judgment as a matter of law, and the state supreme court affirmed that decision.
We offer up this example not as a deterrent to medical malpractice claims, but rather as a cautionary tale. While no legal team can guarantee an outcome, an experienced attorney can provide you with a good measure of the strength of your case.
Contact our Charlotte personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
Mammarella v. Evantash, M.D., et al., May 15, 2014, Delaware Supreme Court
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