Breast cancer is the most common cancer in women. Delayed diagnosis of breast cancer is one of the more common ways in which doctors commit medical malpractice. Breast cancer is a curable disease when the diagnosis is promptly made and treatment rendered. When a woman’s doctor ignores or disregards her patient’s history and medical records, the diagnosis of breast cancer can be negligently delayed and the vital window of curable treatment may be lost, resulting in destructive breast surgery, pain and suffering, and even loss of her life. I will describe one of our cases illustrating this travesty.
Mrs. Marsha was a 54 year old woman who has been followed by her gynecologist, Dr. Gyne, for the signs of a growing breast cancer over a period of years. Mrs. Marsha complained of progressively increasing left breast tenderness and a breast lump, while her doctor falsely reassured her that she merely had dense breasts. Mrs. Marsha dutifully obtained regular mammograms at yearly intervals. Long before her left breast lump could be felt, an abnormality showed itself on a mammogram, and a breast biopsy was done, which showed benign but precancerous cells present. Precancerous cells are not themselves cancer, but show a high risk of developing cancer.
Three years later, new abnormal calcifications on her mammogram developed in exactly the same location in her left breast as the previous precancerous cells, and the abnormal calcifications had increased in number and became more ominous. Dr. Gyne disregarded these mammographic abnormalities and negligently did not refer Mrs. Marsha to a surgeon for evaluation, which a reasonably careful gynecologist would have done. Even worse, Dr. Gyne negligently prescribed estrogen hormones to Mrs. Marsha. Estrogens are known to stimulate breast cancer and should never be given to a woman with suspicious or possible breast cancer. Subsequent mammograms showed a small but distinct, solid mass. A solid mass in the breast, particularly in a woman with known precancerous cells in the same site, must be considered breast cancer until proven otherwise, yet Dr. Gyne continued to reassure Mrs. Marsha because he could not feel the small lump, and he continued to prescribe estrogens. This mass was breast cancer, and because of its small size, it was highly curable with a limited surgical procedure, called “lumpectomy.”
One year later as the mass increased in size and was felt by Mrs. Marsha, Dr. Gyne finally referred Mrs. Marsha to a surgeon, which a reasonably careful gynecologist would have done years earlier. The precious window of opportunity to confine the operation to a lumpectomy had been squandered. The breast cancer, now quite large, had spread to the lymph nodes under her left arm, requiring a more extensive, destructive, deforming operation. Mrs. Marsha lost her entire left breast and axillary lymph nodes, and she required radiation therapy and chemotherapy. The estrogen hormones prescribed by Dr. Gyne which were stimulating the growth of her breast cancer were finally stopped. The extensive surgical operation and the radiation therapy caused Mrs. Marsha to develop marked swelling of her arm, known as lymphedema. Had the cancer been detected earlier, Mrs. Marsha’s treatment would have been a simple lumpectomy and radiation to the breast, and her likelihood of cure would have been markedly improved.
Attempts to settle the case failed, and Dr. Gyne’s insurance company refused to negotiate a settlement and refused to settle the case. After a two week trial, the jury found Dr. Gyne negligent and determined that proper compensation to Mrs. Marsha and her husband was $5.9 million, a record verdict in Illinois for a negligently delayed diagnosis of breast cancer.
JUSTICE CAN BE ELUSIVE WHEN SUING A DOCTOR
Holding Dr. Gyne liable for the consequences of his negligence was difficult. The jury pool, which includes almost all of us, had been inundated with propaganda from “talking heads” on television, well financed by medical and manufacturing corporations and insurance companies, which falsely suggest that the victims of medical negligence lawsuits clog the courts with frivolous lawsuits. Holding Dr. Gyne, or any doctor, accountable for his misconduct was easy. Special laws exist for holding any doctor responsible for the injuries caused by his negligence, and these laws create hurdles and obstacles not present for holding ordinary people liable for their carelessness. These special laws make filing and prosecuting medical malpractice cases more difficult and more expensive. In Illinois and many states, to even file a lawsuit against a doctor like Dr. Gyne, Mrs. Marsha had to attach a letter from a doctor who has reviewed her records and who attested that medical malpractice which caused the injuries had occurred. The propaganda financed by corporations and insurance companies to influence potential jurors worked, and our jurors were quite sympathetic to Dr. Gyne. When the jury found Dr. Gyne liable, the jury found the evidence was overwhelming.
JUSTICE REQUIRES STRICT PROOF
To win a medical malpractice lawsuit, Mrs. Marsha had to prove that Dr. Gyne did not act like a reasonably careful doctor and that his conduct was a contributing cause of Mrs. Marsha’s injuries. The evidence clearly proved that Dr. Gyne did not act reasonably as he received serial mammogram reports which showed progressively abnormal findings in the exact area of Mrs. Marsha’s breast where a biopsy showed precancerous cells. Even though the mammogram did not conclude that she unequivocally had breast cancer, her diagnosis could only be made by getting a tissue biopsy. Dr. Gyne was not a general surgeon specializing in the treatment of breast cancer, and Mrs. Marsha needed the general surgeon’s expertise. The jury found that Dr. Gyne’s prescribing estrogen hormones to Mrs. Marsha when the mammograms showed progressive abnormalities which suggested possible breast cancer was not what a reasonably careful gynecologist would do, nor was reassuring Mrs. Marsha that the mammograms were “negative.”
The most difficult element to prove was that Dr. Gyne’s conduct was a contributing cause of Mrs. Marsha’s injuries, so-called “proximate cause”. Dr. Gyne did not cause Mrs. Marsha’s breast cancer, but his ignoring the growth of the cancer permitted its untreated growth, even stimulated that growth and extension to her lymph nodes, squandered her best chance at curing her cancer, and resulted in the removal of her entire breast and lymph nodes, as well as extensive radiation therapy and chemotherapy. The necessary treatment of this large cancer caused her left arm to permanently swell up to twice its size and become weakened. Dr. Gyne’s negligent conduct wasted the window of opportunity for simpler, less destructive treatment, and the jury properly held him responsible for Mrs. Marsha’s injuries.
DOCTORS AND INSURANCE COMPANIES ALWAYS DEFEND VIGOROUSLY
Refusing to settle and thus delaying payment for Mrs. Marsha’s injuries until forced to pay is a strategy which usually benefits Dr. Gyne and his insurance company. Defendant doctors and insurance companies always vigorously defend “delayed diagnosis of breast cancer” cases. No matter how egregious the doctor’s negligent conduct, defendant doctors and their insurance companies virtually always find an expert doctor who supports their defense. Mrs. Marsha’s case was no exception. Only a doctor can testify in court as to what a reasonably careful doctor should do in the same or similar circumstances, otherwise known as the “standard of care.” No matter how obvious, a layman is not permitted to testify to the standard of care of a doctor, even something so evident, as in Mrs. Marsha’s case. A university professor testified that Dr. Gyne acted reasonably in not referring Mrs. Marsha to a surgeon and in prescribing estrogens, because the radiologist report did not explicitly state that Mrs. Marsha had cancer until the very last report. The special laws protecting doctors required Mrs. Marsha to retain two expert witnesses, a gynecologist and a general surgeon, to testify to the obvious: a reasonably careful gynecologist should review all of his patient’s reports and recognize that the progressively abnormal mammogram findings were in the same area as the precancerous cells, requiring referral to a breast cancer specialist, and that if breast cancer is a consideration, estrogen hormones should not be given. Our expert surgeon testified that the delayed diagnosis of Mrs. Marsha’s very large breast cancer reduced its likelihood of cure and required the removal of her entire left breast, removal of axillary lymph nodes, radiation therapy, and chemotherapy, and caused her massive left arm swelling.
“BLAME THE VICTIM”
A favorite tactic in defense of the negligent doctor is to “blame the victim,” even though doctors are in the business of treating people who have disease and are paid to provide reasonably careful treatment. In breast cancer cases, the “blame the victim” defense tactic is frequently employed, even though the law instructs the jury, the experts, and the attorneys that pre-existing conditions are not a defense to a doctor’s negligence. Dr. Gyne’s lawyers and experts blamed Mrs. Marsha for her having breast cancer which only slowly showed itself on her mammograms, and suggested that if she had developed a cancer which could be felt earlier, none of her destructive operations and complications would have occurred, ignoring that the negligence was that Dr. Gyne induced a delay and prescribed estrogen hormones which caused her breast cancer rapidly, not that he caused her breast cancer itself.
THE “SO WHAT” DEFENSE
Another favorite defense in the delay in diagnosing breast cancer cases is a defense expert’s testimony that the delay was harmless; e.g, “so what” if Dr. Gyne was negligent, because Mrs. Marsha’ breast cancer had already spread even when only visible on her mammogram. Dr. Gyne and his insurance company defended at trial by alleging that her breast cancer had already become metastatic even when only visible on the mammogram. According to the defense, even if Dr. Gyne did not act like a reasonably careful gynecologist, Mrs. Marsha’s breast cancer was already incurable. The evidence showed that the delay between Dr. Gyne’s negligence and the breast cancer diagnosis was years, during which time no treatment given to cure the cancer and the prescription of estrogens enhanced the growth of her small, curable breast cancer. During this delay, her untreated breast cancers grew in size and shed cancer cells which lodged in other areas of her body. In most states, negligent conduct which deprives a patient of the chance of cure is an injury for which she deserves compensation by the careless doctor, which reflects the actual practice of medicine. Even when the treatment is likelihood to achieve a cure is less than 50%, doctors virtually always recommend treatment, because saving the lives of even less than 50% of the patients with cancer is a worthwhile goal, especially to those cured of their cancer.
JUSTICE CAN PREVAIL
We obtained a verdict for Mrs. Marsha of $5.9 million, which was a record verdict in Illinois. I practiced as a general surgeon for forty years and am certified by the American Board of Surgery. I have treated and cured many patients with breast cancer. As a trial lawyer since 1984, I have obtained many record verdicts and settlements for my clients in medical malpractice cases. Mrs. Marsha was one such record verdict. My detailed, intimate knowledge of both the law and medicine enabled me to achieve justice to many victims of delayed diagnosis of breast cancer and other medical malpractice.
If you were a victim of medical malpractice, particularly involving a “delayed diagnosis of breast cancer,” no matter where it occurred, call me. I would be privileged to discuss your case with you at no charge. If I take your case, you may recover substantial compensation for your injuries and those to your family. I never charge a fee unless I recover on your behalf. Email me, Kenneth C. Chessick, MD, JD, at [email protected] or call me at 847-843-8044 to discuss your case.
Note: This biog. is written to educate people on the principles of medical malpractice litigation. Names, dates, and facts were changes for reasons of privacy. Every statement is an opinion based on the experience of Kenneth C. Chessick, MD, JD. Every case is different and must be evaluated on its own facts. No guarantees are implied or made. Copyright 2014