Breast Cancer Litigation in the 21st Century
By Dominique Chin and William Spratt
Failing to timely diagnose breast cancer is one of the leading causes of malpractice suits related to breast cancer. In addition, improperly performed procedures during diagnosis and treatment are significant sources of litigation (Ann Surg Oncol, 2018).
Understanding the Anatomy of Failure to Diagnose Breast Cancer Cases
In recent years, cases involving failure to diagnose breast cancer have highlighted complex legal issues and have become more prevalent in malpractice litigation. Here, we’ll explore some key aspects of these cases, including what constitutes malpractice, the role of informed consent, and specific challenges faced by plaintiffs and defendants.
Anatomy of a Medical Malpractice Case
For a plaintiff to succeed in a medical malpractice case, two primary elements must be proven:
- Deviation from Accepted Medical Practice: The plaintiff must demonstrate that the healthcare provider did not follow standard medical practices.
- Proximate Cause of Injury: There must be evidence that the provider’s deviation directly caused harm.
A recent example can be found in Raucci v. Shinbrot, where the court required plaintiffs to show that any deviation in care was a substantial factor in causing the harm.
The Importance of Informed Consent
For a successful malpractice claim based on lack of informed consent, plaintiffs must show that the medical provider failed to disclose:
Treatment alternatives and foreseeable risks
The risks that a reasonable provider would have disclosed in similar circumstances, and that a prudent patient would have opted out of the treatment had they been fully informed.
This requirement is outlined in Public Health Law 2805(d), and an example is seen in Walker v. Saint Vincent Catholic Med. Ctrs.
Who Can Be Held Liable in Breast Cancer Diagnosis Cases?
Various professionals may be involved in breast cancer diagnosis cases:
- Obstetricians/Gynecologists
- Radiologists (note: there is no private right of action for failing to disclose dense breast tissue findings as required by Public Health Law 2404-a, as shown in Gormley v. Estabrook).
- Breast Surgeons
- Primary Care Physicians
- Pathologists
- Hospitals and Physician Corporations
- Technologists (mammogram and ultrasound)
Statute of Limitations in Failure to Diagnose Cases
In New York, an action for medical malpractice generally must be filed within 2.5 years of the act or last treatment. However, for cases involving failure to diagnose cancer, the time limit may be extended under specific circumstances, particularly where discovery of harm is delayed. Lavern’s Law, enacted in 2018, allows plaintiffs to bring cases up to seven years after the alleged negligent act if they were unaware of it due to delayed diagnosis.
The Continuous Treatment Doctrine
The continuous treatment doctrine can toll (or pause) the statute of limitations when three conditions are met:
- The patient continued to seek and receive treatment from the same provider,
- The treatment related to the same condition underlying the malpractice claim, and
- The treatment was ongoing and continuous.
This doctrine, illustrated in Mello v. Long Is. Vitreo-Retinal Consultant, was created to encourage patients to continue treatment without concern over timely filing.
Establishing Malpractice and Proximate Cause
In proving a malpractice claim, plaintiffs must demonstrate that the provider’s actions departed from accepted medical practice through expert testimony. Additionally, proximate cause must be established, requiring plaintiffs to show that the provider’s actions were likely a substantial factor in causing harm. Cases like Starre v. Dean emphasize the need for sufficient medical evidence to suggest it was "more probable than not" that the defendant’s actions caused harm.
Evidentiary and Procedural Challenges
Several evidentiary issues can arise in breast cancer cases:
- Imaging Evidence: Presenting mammograms or MRIs in court can be complex, as images may be distorted depending on how they are displayed.
- Dead Man’s Statute: This rule can exclude a witness’s testimony about personal interactions with a now-deceased person unless an exception applies.
- Genetic Evidence: In some cases, like Walsh v. Akhund, evidence of a genetic predisposition (e.g., the BRCA gene) may be considered relevant, although admission of such evidence depends on its reliability and probative value.
Advances in Testing and Detection
New testing technologies, such as Oncotype testing, help predict the likelihood of breast cancer spreading or recurring and can guide treatment options. Additionally, invasive lobular carcinoma (ILC) presents unique detection challenges, as it often grows in sheets rather than forming a lump, making it harder to detect with standard mammograms.
Presentation at Trial
The presentation of medical evidence in court can significantly impact the outcome. Different viewing software and technological setups in courtrooms may alter image quality, and careful instruction on medical terminology (e.g., clock positions in breast anatomy) can help juries better understand the issues at hand.
Failure to diagnose breast cancer cases involves detailed examinations of medical standards, informed consent, and often complicated evidentiary issues. For legal practitioners, these cases highlight the need for a thorough understanding of both medical and legal frameworks, as well as the complexities surrounding statute limitations and continuous treatment doctrines.
If you have questions about the failure to diagnose breast cancer cases or other facets of medical malpractice law, please contact Dominique Chin or Bill Spratt.
