Tort Law: Breast Cancer: Medical-legal Consideration


Breast cancer is suffered by almost 10% of women. Delay in the diagnosis of breast cancer results in many medical malpractice cases. The first category involve a diagnosis of a benign lump which later shows to be cancerous. The second category involve cases where no lump is noticed during an examination. Breast cancer misdiagnosis cases are difficult to prove negligence and proximate causation and to bring a successful medical malpractice case needs an attorney who is comfortable with sophisticated medical issues.

I. Introduction

Almost ten percent of women will develop breast cancer, and delay in diagnosis is the source of many medical malpractice cases. This litigation always involves a complicated relationship between law and medicine that requires the attorney to understand the medical aspects of the case and to have a full understanding of the anatomy involved.

II. Breast Cancer Medical Considerations

Cancer of the breast is the leading cause of cancer death in women; however, 80 percent of breast pathology is benign and the result of congenital or developmental abnormalities. Various inflammatory diseases mimic more serious conditions. For this reason, especially in young women, physicians sometimes assume a benign pathology instead of doing a full work-up for cancer.

There are a number of benign tumors. The most common abnormal condition is called fibrocystic disease which is brought about by excessive estrogen stimulation during the menstrual cycle. Patients with this condition often have lumps in the breast which feel cystic and are often tense and tender. Fibrocystic disease can coincide with breast cancer, and a woman with this condition is considered at a higher risk for cancer. Physicians should be aware, and attorneys handling breast cancer cases need to be aware, that there are certain factors which place a particular woman at greater risk than the general population. …/…

For example, a genetic connection is well documented. Women with female relatives who have breast cancer have a two or three times greater likelihood of developing breast cancer than the general population.

There are many instances in which a primary care physician will find a mass and determine that it is fibrocystic disease on the basis of clinical examination. The primary care physician will opine that the only way to make an absolute determination is through an invasive biopsy and that clinically, from a prospective point of view, such a procedure is not required given the history, age of the patient, and clinical signs and symptoms. The contrary argument is that if the tumor is cancerous it will continue to grow and may metastasize causing death. Therefore, every tumor needs to be biopsied.

III. Breast Cancer Tort Law & Legal Considerations

There are two theories upon which a claimant will proceed in a breast cancer case. The first is when the patient presents to the physician with a breast lump or the physician finds a lump and then makes a diagnosis that it is benign when, in fact, it is cancerous. The second category is much more difficult to prove and rarely leads to a successful plaintiff’s verdict. In this case, the lump is not noted, and the physician claims that he did a thorough examination but the tumor was not palpable. The claim is that it was, in fact, there and should have been diagnosed. This requires backward reasoning which more often than not enters the realm of speculation. In the absence of radiographic evidence, most plaintiff’s counsel would be wise to avoid bringing the second category of case.

The basic defense to breast cancer cases, when the tumor was present, is that a late diagnosis did not make any difference to the ultimate outcome. A variety of factors are medical prognosticators of a breast cancer patient’s ultimate outcome. As more and more information is learned about breast cancer, there is more evidence to suggest that the biology of the disease is more of a predicator than the time of diagnosis. …/…

This raises the question of whether a change in the statistical likelihood of recovery is compensable. The Maine Supreme Judicial Court has yet to decide whether or not there can be recovery for “loss of a chance.”

Breast Cancer cases are very difficult cases because not only are there negligence issues that must be proven, but there almost always are causation questions. In a typical surgical case, the results are generally clear and the question is whether there was a deviation from the standard of care. Damage is clear. With breast cancer, the fact that there would have been a different result is always open to attack. The size of the tumor, the doubling time, and the staging at the time of diagnosis are all important factors. The plaintiff must introduce an expert opinion that the patient would have been at a different stage at the time of diagnosis. The medical statistics talk in terms of survivability over five-year and ten-year periods. The retrospective staging opinion is almost always subject to intense cross-examination because, by necessity, it borders on speculation.

Physicians are taught to make different diagnoses when confronted with a medical condition. Essentially, the rule is that they must entertain all of the likely causes for a particular condition and then take steps to rule them out dealing with the most life-threatening first. Since all lumps in a woman’s breast might be cancerous, it can be argued that a physician must have cancer within his differential diagnosis and, therefore, must do a complete work-up to rule it in or out.

All physicians will accept as a premise that cancer must be part of the differential diagnosis if they find a lump in a woman’s breast. The area where physicians deviate in their opinions is whether that lump requires biopsy or whether it is appropriate to rule out breast cancer by clinical examination with or without mammography. It is absolutely essential that a defendant physician be carefully questioned as to the nature and extent of his clinical examination. The medical literature is clear on what is required in a breast examination. Unfortunately, many clinicians are not as thorough as they should be. …/…

For example, many physicians will merely examine the patient while she is seated at the edge of a table. On its face, this is an inadequate examination. Counsel handling such cases should study the literature so that he or she will be fully aware of what is required to do a careful breast examination.

In addition to a careful clinical examination, the records should show that a detailed history was taken from the patient. If a diagnosis of fibrocystic disease was made, there should be contained in the record a detailed history of the patient’s menstrual history. Fibrocystic disease is a pathological response by the breast tissue to normal cyclical hormonal stimulation. Thus, the menstrual history is relevant as to when the patient discovered the lump and to whether the lump changed in characteristics before or after the woman’s period. If a careful history is not obtained, then it probably was not appropriate to diagnose benign fibrocystic disease from a clinical examination. It is also important to know that fibrocystic tumors are generally tender and often appear bilaterally.

IV. Conclusion

You cannot properly represent either a plaintiff or defendant in a breast cancer case without spending the time to fully understand the medicine involved. Because expert witnesses are available on both sides of the question, the case often is resolved by the testimony of the defendant physician. Good cross-examination can show that the defendant has not met the criteria set forth by his own experts. On the other hand, a well prepared defendant who is able to support his clinical judgment is entitled to a defendant’s verdict. These questions, of course, deal with the issue of negligence and do not even start to address causation.

Breast cancer diagnosis cases, on one hand, often involve catastrophic injury to the plaintiff and her family. On the other hand, they are cases in which it is difficult to prove negligence and proximate causation. Such cases should only be handled by attorneys who feel comfortable with sophisticated medical issues.