A Protect Yourself from Breast Cancer Malpractice -- The Leading Cause of Medical Lawsuits
by Kevin Berrill
This article has been published in the Washington Afro-American and The Washington Informer; a similar version has appeared in The Prince George's Post, and The Montgomery County Sentinel.
In February of 1990, Deborah Valentine, a 39 year-old suburban Washington, D.C. professional, went for a routine mammogram to check for potential breast cancer. When she received a clean bill of health, she breathed a sigh of relief. Less than a year later, she decided to have a child.
Eight months into her pregnancy, Ms. Valentine became alarmed when she felt a lump in her breast. She immediately went to her doctor. Tests revealed advanced breast cancer. Several days after the cancer was detected, she had an emergency caesarian section to deliver her son, Nicholas, who was born healthy.
Dismayed that her cancer was so advanced when her mammogram had been clear only 16 months earlier, Ms. Valentine obtained her mammogram films and gave them to her doctor. It was soon evident that her radiologist had misread the mammogram as normal when, in fact, the films of one of her breasts showed suspicious signs of cancer.
Deborah Valentine turned for help to renowned Washington malpractice attorney Jack Olender, who filed suit against the radiologist. During the legal investigation, the radiologist admitted that he failed to follow standard procedure in evaluating the films.
Although Deborah Valentine's case is alarming, it is by no means unique. Delays in diagnosing breast cancer cases account for more medical malpractice lawsuits than any other disease or condition, according to a study by the Physician Insurers Association of America (PIAA). The study found that the single greatest reason for breast malpractice claims is that doctors did not consider physical findings significant enough to warrant tests to check for potential breast cancer. Other common mistakes by physicians leading to lawsuits include failure to follow up with patients, false negative mammogram reports, misread mammograms, failure to react to mammogram results or to do a proper biopsy, failure to order a mammogram, or delay or failure to consult with a patient.
Jack Olender, who frequently handles cancer malpractice cases, says the PIAA study comes as no surprise. "There is an epidemic of undiagnosed cancer in this country. Much is due to doctor negligence."
"According to treating doctors and other oncologists," said Olender, "if Ms Valentine's 1990 mammogram had been properly read, her chance of disease-free survival at five years after diagnosis would have been between 80 and 90 percent. Her chance of cure would have been about 80 percent."
In June 1995, Deborah Valentine died. She was 44 years old. Despite aggressive treatment by her doctors, the cancer spread throughout her body. Her son, Nicholas, is now being cared for by Deborah's sister and her family. Before her death, she received a multi-million dollar damage settlement, which provides for his care.
"Ms Valentine's case is as tragic as any I've seen," said Olender, who represents numerous women who are victims of breast-related malpractice. "I hope the PIAA study encourages all women to learn as much as possible about breast cancer, and to be active partners in their own health care."
Younger women, such as Deborah Valentine, were found by the PIAA malpractice study to be at especially high risk for malpractice. Sixty percent of the patients were under 50 years of age, and 31 percent were under 40. Although some reported feeling lumps in their breasts, doctors never investigated them as possible tumors.
One reason for the high number of lawsuits by women under 50 is that some physicians are less careful with younger women because they are statistically less likely than older women to get breast cancer. Denser breast tissue in younger women also makes tumors more difficult to detect.
Although the PIAA study did not investigate whether African American women are at increased risk for malpractice, they are certainly at higher risk for breast cancer mortality. According to the American Cancer Society, African-American women with breast cancer are less likely than white women to survive five years (69% vs. 84%) after diagnosis. Low-income African-American women are three times more likely than high-income women in general to be diagnosed with advanced disease. These disparities are due primarily to delays in detection and treatment. "Medical negligence is without a doubt responsible for many of these delays," said Olender.
Olender counsels women to follow American Cancer Society guidelines for early detection of breast cancer. (See box). "If a woman observes a change in her breast, she should seek medical attention immediately."
To avoid the risk of malpractice, Olender urges doctors and their patients to be vigilant. "If there are any changes in the breast, tests should be ordered to determine whether there is a malignant (cancerous) tumor. If the doctor hesitates, I urge the patient to seek an immediate second opinion. Allow the second doctor to form an opinion before sharing with him or her the conclusions of the first doctor. This will minimize the chance that the second doctor will be unduly influenced by the opinions of the first."
"To rule out a possible malignancy, a biopsy -- the removal of bodily tissue -- should be conducted. Although a biopsy is not a foolproof method for determining cancer, it is generally more accurate than a mammogram. Mammograms are an essential device in cancer screening, however they cannot definitively rule out the presence of cancer. A persistent lump or mass in the breast, even with a negative mammogram result, usually requires a biopsy."
To avoid delay in diagnosis of breast cancer, Olender urges patients not to procrastinate: "Time is of the essence. If a physician schedules tests or a follow-up appointment, keep the appointment. The patient should not assume her doctor will call if she misses the appointment," he said.
"What happened to Debbie should serve as a reminder to all women that they need to be strong advocates for their own health," says Deborah Valentine's sister, Marcia Plater. "I hope they will seek out a second or third opinion if they have any doubt about their physician's diagnosis."
"It's bad enough that women have to worry about breast cancer, without also having to be concerned about malpractice," said Olender. "But physicians are human and make mistakes. A few make more than their share. In the age of managed care, the risks are even greater. Medical professionals are under pressure to keep costs down, even if it means withholding life-saving diagnostic tests. Given that patients sue for breast cancer malpractice more than any other disease, women and their loved ones can't afford to be uninformed or disengaged."
AMERICAN CANCER SOCIETY
RECOMMENDATIONS FOR THE
EARLY DETECTION OF BREAST CANCER
IN ASYMPTOMATIC WOMEN
Once a month:
Copyright © 1997, Jack H. Olender