INFORMATION ABOUT
FAILURE TO DIAGNOSE CANCER

We hope that the questions and answers presented here will assist you in familiarizing yourself with some of the main issues and terms associated with a physician's failure to diagnose cancer. While the material below attempts to answer common questions in this area, State and local laws may significantly modify the facts set forth. Because all legal problems are unique, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

WHAT KINDS OF CANCERS GIVE RISE TO MALPRACTICE SUITS?

Failure to diagnose any type of cancer may give rise to a lawsuit if the failure results in a change in the cure or relapse rate. The more common failure to diagnose cancer claims include prostate cancer, lung cancer, melanoma (a type of skin cancer), colon and rectal cancer, and gynecologic cancers (ovary, uterus, and cervix).

MY DOCTOR IGNORED A LUMP IN MY BREAST. I JUST FOUND OUT THAT I HAVE BREAST CANCER. CAN I SUE HIM FOR MALPRACTICE?

Breast cancer is one of the most commonly reported medical malpractice claims. A physician has a duty to examine a patient and evaluate any lumps found by either the doctor or patient. If your doctor ignores a lump that turns out to be cancerous, a lawsuit may be successful because the doctor's care would be below the standard of care.

WHAT TESTS SHOULD A DOCTOR ORDER TO MAKE A DIAGNOSIS?

The doctor should perform a thorough breast exam by actually touching the patient. If you discover a lump on routine self-breast exam, you must point it out to the doctor. Even if the doctor is unable to feel the mass, he or she should order a mammography, which is an x-ray. Even if the mammography is negative (does not show a mass), further testing should be ordered if you are sure that you feel something different than your usual breast tissue. Ultrasound of the area may show something that mammography did not. Ultimately, the area may need to be aspirated with a needle in order to get a specimen to examine under the microscope for cancer cells. Failure to take a patient seriously and order the appropriate tests in a timely fashion may constitute malpractice if cancer is later diagnosed.

WHAT WOULD BE THE BASIS FOR A LAWSUIT AGAINST THE PHYSICIAN?

Failure to order a mammogram, incorrectly read a mammogram, or relying on a "negative" mammogram when a mass can be felt are all examples of physician negligence. Failure to properly evaluate a breast mass is below the standard of care and gives you reason to sue. Generally speaking, the issue is whether the negligent delay in diagnosis by the doctor would have changed the patient's survival rate or relapse rate from the cancer.

DO I HAVE TO HAVE AN ATTORNEY?

Yes. In order to prove negligence, you will need to retain experts to testify on your behalf about what occurred, from a technical sense. The negligent party will then retain its own experts to contest everything that you say. The attorney will be able to help you find experts and cross-examine the other party's experts as well. It would be most difficult, if not impossible, for a non-lawyer to handle a failure to diagnose canser malpractice case.

HOW DOES MY ATTORNEY GEY PAID?

Most attorneys review potential malpractice cases on a contingent or percentage fee basis. This means that the attorney's fee will be a percentage of the amount recovered on your behalf. If there is no recovery, then you will not owe any fee to the attorney. Most attorneys will even advance the expenses needed to bring the case to trial, and then get reimbursed for those expenses from the recovery. All of these details regarding the fee and cost arrangements should be worked out with your attorney in advance, before any work is done on the case. You should review all of these details completely with the attorney and have the fee arrangements put into writing.

DESSEN, MOSES & ROSSITTO is happy to assist you in any legal matter that involves either Pennsylvania or New Jersey, the two states in which our attorneys routinely practice. If you wish to contact us for more information concerning this field of law or any other in which we practice, please send us an E-mail message and we will be happy to try to assist you.

LINKS TO OTHER INTERESTING INFO

American Cancer Society
Association of Cancer Online Resources,Inc.
iVillage Breast Cancer Center
National Cancer Institute

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