According to BreastCancer.org, approximately 1 in 8 women will develop invasive breast cancer at some point in their lives. That breaks down to approximately 12 percent. It’s estimated in 2014, nearly 233,000 new cases of invasive breast cancer will be diagnosed, while there will be approximately 63,000 new cases of non-invasive breast cancer diagnosed.
Advances in methods of detection and treatment over the last several decades have left us with the sense that the disease is no longer a death sentence. And it’s true in many cases. However, survival often depends on an early and accurate diagnosis. When this does not happen, prognosis dims significantly.
In some cases, that may not be anyone’s fault. However, failure to diagnose is a serious problem that can have serious and even fatal consequences for the patient. If proven in court, the victim and/or surviving family may be entitled to damages.
That was the case for plaintiffs in Uriell v. Regents of UC, a California case wherein it was alleged a surgeon specializing in breast cancer breached the applicable standard of care by failing to diagnose a patient early on in her disease. When patient was eventually diagnosed, the cancer was not treatable and she died within 18 months. Her family sued the doctor and the doctor’s employer for wrongful death.
According to court records, decedent had an extensive family history of breast cancer on both sides of her family. Early deaths from the disease included her mother, her mother’s aunt, her paternal grandmother and all 10 of her great-aunts.
In 2007, decedent’s husband felt a small lump in one breast, approximately the size of a pencil eraser. Because of the family history, decedent was concerned and quickly set an appointment with her family practice physician. The doctor noticed a 2-centimeter lump and ordered an ultrasound/mammogram. While the radiologist found no significant masses that would raise suspicion, he did say the tissue was extremely dense, and it could obscure a lesion. A small collection of cysts was located during the ultrasound.
Patient was referred to defendant surgeon. After reviewing the mammogram and ultrasound, defendant doctor determined patient had “simple cysts,” not cancer. She offered to take the cyst out, but said she was fairly certain it was benign and ordered her to cut back on caffeine. The doctor did not order an MRI or any follow-up testing.
Approximately 18 months later, patient complained of back pain and persistent flu-like symptoms. Her breast had also changed in appearance. After some testing, she was diagnosed with breast cancer. By then, the condition was not treatable. She died in December 2010.
Her husband and minor children sued the hospital and surgeon for wrongful death, asserting physician breached the applicable standard of care by failing to biopsy the breast tissue upon her first referral and failing to order a follow-up MRI that might have detected breast cancer after her first appointment.
Surgical expert for plaintiffs opined to a reasonable degree of probability these measures would have detected the breast cancer, and patient would have likely lived possibly another 10 years had she been treated sooner. (Hers was an especially aggressive form of cancer, and even with treatment, life can be prolonged but the prognosis is usually death within 5 to 10 years.)
In her deposition, physician stated follow-up was not necessary because patient’s lifetime risk of the diseases was estimated through a computer-generated program to be at 17 percent. Follow-up appointments are necessary when the risk is deemed 20 percent or higher. However, the doctor later impeached herself when it was shown she told patient this machine underestimated the risk and, she also testified she believed this patient’s risk to be greater than 20 percent.
Defendant doctor also admitted that if a doctor has access to a patient’s family history and does not read it, the standard of care would be breached. In this case, the family medical history was available to doctor, and she conceded she had not read it before treating the patient.
At conclusion of trial, defendants argued patients couldn’t recover for wrongful death because they couldn’t prove with a more than 50 percent chance decedent would have survived her cancer because she was already at Stage IV when she first sought treatment.
Court rejected that motion and patients were awarded $550,000, plus costs.
Trial court denied motion for a new trial, and the California Court of Appeal, Fourth Appellate District, Division One, affirmed.
Defendants argued on appeal plaintiff’s expert witness lacked foundation for his opinion decedent would have lived 10 years or more had she been diagnosed timely, and secondly, the court failed to properly instruct jurors on causation as it relates to “reasonable medical probability.”
However, appellate court affirmed the judgment in favor of plaintiffs.
If you have been injured in West Palm Beach, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Uriell v. Regents of UC, Feb. 20, 2015, California Court of Appeal, Fourth Appellate District, Division One
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