Should my mom sue?

January 3, 2008 9:16 AM

My mom was recently diagnosed with breast cancer, which sucks in many, many ways, not the least of which is that it seems that it could have been caught by her mammogram two years ago, but wasn't, possibly because the technician ignored information in her chart. She is now being encouraged by others to sue for malpractice, considering that her cancer has now had two extra years to progress. I'm wondering if she actually has a case, and if so, how should she proceed. This is kind of a long story, so there's more inside...

My mom had silicone implants put in in the late 70s, and a few years ago they began to leak. Implants can obscure the mammogram technician's ability to detect tumors, so they have to use a special technique (although I'm not sure exactly how that works) to perform the mammogram. Because of my family's history of breast cancer (my mom's mother, aunt and sister all had it), and the fact that she felt a lump, my mom told her doctor that she suspected she had cancer, but according to her, he just brushed her off. Now, two years later, she had surgery to remove the implants, and has discovered that she DOES have cancer, and based on the size of her tumor, it has been growing for several years. When she showed her charts to her oncologist, the oncologist said, "Wow. He should have caught this. I'm going to call and tell him that he needs to watch out for this in the future," which leads my mom to believe that the doctor may not have been paying as much attention as he should have, and that this could have been discovered sooner. Basically, my mom is not at all the litigious type, and in fact has somewhat of a moral aversion to lawsuits. She doesn't blame the doctor for her cancer, obviously, but she's in a lot of pain and is having trouble working, and would like to know if he really should have seen it two years ago, and if she does decide to sue, what would be a reasonable settlement. She's feeling pretty hopeless about life in general right now, and I just want to make sure that if she has a right to some kind of compensation, she gets it. I would really appreciate any advice you can offer.

posted by odayoday to health & fitness (23 comments total)

Wow, that sucks. Tell your mom to contact a medical malpractice lawyer. There are a ton of them, but I recommend that she contact her county's bar association for a recommendation.
posted by amro at 9:27 AM on January 3, 2008

Wow. First of all, I am sorry about your mother. My own had breast cancer and she beat it. I wish your mom success as well.

That being said, its your mother's decision to sue. I also have some moral aversion to lawsuits, especially malpractice ones. But bear in mind that she doesn't have to sue punitively, she can just sue to have her medical care paid. She's definitely, IMO, entitled to that if they made a mistake.

Consult an attorney. They will be able to advise you/mom better than anyone here can.
posted by uaudio at 9:29 AM on January 3, 2008

IANAL, but I work for a medical malpractice attorney. Most of the good ones will review your mom's case for a free consultation, and if they think there's something worthy of investigation, will instruct her on how to proceed.
posted by roomthreeseventeen at 9:33 AM on January 3, 2008

The county bar association will not necessarily refer her to a good med mal attorney--if they're like my county, they will just refer to the next attorney on the roster who has indicated that they take med mal cases. A better approach would be to call a bunch of lawyers and ask them for a referral, and go with anyone that gets mentioned by several lawyers.

Also, I don't have any moral aversion to lawsuits--I believe they play an important role in motivating people to behave responsibly--but your mom should know going in that litigation is generally a pretty unrewarding process for everyone involved, and she might prefer to direct what will be her limited energy toward getting better. On the other hand, if this is just going to be eating her up, then maybe it would be worth it. But first you have to see if you have a good case.
posted by Enroute at 9:43 AM on January 3, 2008

It sounds to me like she has a good case.

She's in a high-risk age group, she has several first-degree relatives who had breast cancer, and she felt a lump. Yes, the doctor should have caught it.

Mefi lawyers will give a better explanation, but my understanding is that there are 4 d's of negligence:

Did the doctor have a DUTY to screen her adequately? Yes
Was there DERELICTION of that duty? Sounds like it to me, but a lawyer will be able to answer this.
Were there DAMAGES? My guess is yes, since breast cancer is much easier to treat the sooner it is caught. The damage is the progression of the cancer.
Is there a DIRECT relationship between the dereliction and the damages? My guess is yes, because if he had screened her properly treatment would have started earlier.

I hope she talks to a lawyer. I'm going in for my first mammogram soon and I agree that lawsuits can motivate people to act more responsibly.
posted by selfmedicating at 10:02 AM on January 3, 2008

One of my relatives has a case where a tumor was missed for several years. His case, to my untrained eye, looked like a slam dunk. Several years of lawyer fees later, the jury ruled for the doctor. My understanding is that medical malpractice cases are fairly hard to win. Doctors are allowed to make mistakes. It sucks royally if you or a loved one is that 1 in a 1000 case though.

I'm not advocating for or against legal action - just throwing this out there to play devil's advocate. In any case, I think I'd focus on her getting well first. The stress of a lawsuit can't be good for her recovery chances.
posted by COD at 10:27 AM on January 3, 2008

There was a good (and complicated) article in the New Yorker about a year ago about medical malpractice. I think it was by Atul Gawande. It might be worth finding and reading.
posted by sully75 at 10:38 AM on January 3, 2008

The stress of a lawsuit ...

IAAL, but not a med mal lawyer etc. etc.

COD and Enroute are not wrong that most of us would rather be doing something other than litigation. However, don't exaggerate the so-called stress issue. Your mom will have to show up somewhere for a couple of days and truthfully answer some questions. The lawyer will handle everything else. I don't think there will be an awful lot of stress. In any event, the stress aspect will be part of your initial talk with the lawyer, whom you will find through a personal referral, not by picking randomly from a bar association list.

Best wishes to all of you.
posted by JimN2TAW at 10:42 AM on January 3, 2008

Even if she wins, after all the fees and drama, she'll still have cancer and still would have had cancer.
posted by Brandon Blatcher at 10:50 AM on January 3, 2008 [1 favorite]

Lawsuits and lawyers, unsavory as they can be, seem to be the most effective blunt weapons that patients can use to call attention to bad medical care. Until licensing boards, malpractice insurance carriers and hospital committees granting practice privileges take greater responsibility for the effect of their decisions on the health of patients, lawsuits will continue to be an important way of identifying who has been careless, impaired during office hours, using poor judgment, practicing without adequate training and so on. So it might not help your situation, but your action might help the next patient. Having said that, don't expect malpractice lawyers to strive to increase the greater good. They have their own agenda (read: contigency fees) and are less likely to take your case if there isn't an outsized pile of cash within easy reach.
posted by bbranden1 at 10:52 AM on January 3, 2008

She should discuss this with a lawyer. As uaudio pointed out, she needn't ask for damages if she does decide to sue.

A mitigating factor in how "good" this case will be is that diagnosis based on those films depends very significantly on the skill, talent, and experience-level of the radiologist. Additionally, the size of the tumor may or may not provide the most rock-solid "proof" -- tumor progression is a capricious little beast. Hindsight, of course, is 20/20.

/not a lawyer or a radiologist.
posted by desuetude at 11:06 AM on January 3, 2008

Even if she wins, after all the fees and drama, she'll still have cancer and still would have had cancer.

To put this in perspective, my aunt died in September of breast cancer. She spent her last years living well and doing things she wanted to do, being with people she wanted to be with and enjoying life.

Had she spent it in lawyer's offices and courtrooms she would have been miserable and she still would have died, quite possibly sooner from being so miserable.

Life isn't fair and neither is death, so enjoy what you can, when you can.
posted by Brandon Blatcher at 11:07 AM on January 3, 2008

On a phone, so I'll be brief.
There are two big red flags that stand out to me as reasons this case would not be open/shut. 1. implants make it very hard to see lumps, especially leaky ones. 2. Two years is at the limit of time between screenings for low risk individuals. The long wait would "look bad".
I agree with everyone who said she should focus on getting better. Court can be an ugly place. Best of luck to you and your family.
posted by nursegracer at 11:24 AM on January 3, 2008

In my (admittedly rosy-colored) view, the point of any litigation should be to help even the situation out when something incredibly unfair has happened to a person, not to punish anyone. In your mom's case, that would mean getting money to help pay for her medical and living expenses, since her situation will most likely be more complicated and costly due to the error. In a perfectly fair world, the courts would rule that the cancer be taken back, but obviously money for treatment is the best real-world compensation that can be offered.

Suing to get back at a doctor, suing to punish them, even suing to "call attention to bad medical care"... all these things can be accomplished through other means. I think a letter to a doctor that honestly explains all the heartbreak and pain your family is going through due to his mistake would have much more effect on his future practice than any legal suit. If you really feel that the doctor was negligent, and didn't just make an honest mistake, then cc the letter to someone in charge at the hospital.

When people claim "a moral aversion to lawsuits," I think what they often find repulsive is the vindictive, money-grubbing attitude that could prompt such a lawsuit. I just want to point out that, whether or not you guys end up deciding to sue, your motivations can come from a sense of fairness and improvement of the medical establishment, rather than from spite.

For a very well-written and interesting take on the issue of medical mistakes and malpractice, check out Atul Gawande's book "Complications: A Surgeon's Notes on an Imperfect Science".
posted by vytae at 11:26 AM on January 3, 2008

An acquaintance of mine found a lump in her breast and asked her doctor about it. He told her that at age 24 she was too young to have cancer. A year later (after finally checking with another doctor), she'd undergone a mastectomy and began chemo. She's not even 30 yet, and has had both breasts removed (cancer was found in the other one, too). She's going through her fourth round of chemo, and the cancer has spread to her spine. In fact, about a year ago she was having so much pain in her tailbone that she couldn't sit comfortably and had trouble walking. Her oncologist said that that was a common side effect of chemo and that she'd developed osteoperosis. While getting routine Xrays a few months after that conversation, the technician noticed a spot on her lumbar spine and contacted the oncologist. My friend sees a different doctor now and goes to a university hospital for her treatment. She's consulted lawyers and is slowly moving forward with lawsuits against the two doctors who brushed her off originally, but she secretly believes that the doctors' lawyers are dragging their feet and tying things up in hopes that she'll die before the case comes to court. (Her only relative is her mom, who has issues of her own.)

Her main objective in suing was to call attention to the doctors who didn't take her complaints seriously because she was young. Perhaps making an "example" of them would force them to take all future patient complaints seriously. Whether or not your mom sues is ultimately up to her, but you said that she's having trouble working and is feeling helpless about life. If an attorney told her that she had a legitimate case, perhaps it would give her something to focus on and encourage her to undergo whatever necessary treatments to extend her life so that she can make sure this doctor listens to the next woman who suspects she might have cancer.

Best of luck to you and your family.
posted by Oriole Adams at 11:35 AM on January 3, 2008

Firstly, I see the faces of families affected by cancer all too often, so I offer my sincerest sympathies. I think talking to a lawyer might be reasonable at this point, and I am by no means an expert on malpractice, but there are a few facts I think you might want to know from a medical standpoint before proceeding as this case may not be nearly as open-shut as other people think.

Currently, the latest guidelines still recommend mammography as the standard for screening for breast cancer. This is regardless of implants, and there is considerable debate about how implants affect the accuracy of mammography. At some centers, in this scenario people have turned to MRI, but 2 years ago that was a less common practice, and it remains uncertain as to how much additional value that approach has in catching cancers, so it isn't yet considered a standard of care. Your mother's doctor did indeed do his duty in ordering a mammogram which is recommended every 1-2 years, and it's not his/her responsibility to read that study if they're a primary care provider. All they're going to get is a radiologist's report and I would assume the report was negative (obviously disregard a read that suggested cancer would be quite negligent).

I guess two questions among others to consider are: should she have gotten a repeat mammogram sooner, and was there actually something on the mammogram that another radiologist would have reasonably been expected to pickup even with the implants in place. Unfortunately, I suspect a definitive answer to the former is probably lacking, but the answer to the latter depends a lot on that mammogram from 2 years ago. Based on that, if you're going to pursue this you might want to focus your attention on the folks that performed and read the mammogram, though again it's hard to say if something went wrong there or not.

Again, I'm not a lawyer or anything approaching an expert on malpractice, but above are just a few points from the medical standpoint to consider that might influence the way you see how things went. There are probably a lot of other nuances and complexities that noone here might be aware of. I guess what I'm trying to suggest without dissuading you from at least checking all your options is that a lawsuit may not be a slamdunk here, and your family will likely face an uphill battle regardless. But again I think getting more information and at least consulting with a lawyer (or a few?) is probably going to do more good than harm.

I wish you and your mother the best.
posted by drpynchon at 12:21 PM on January 3, 2008

Oriole Adams makes a good point- if litigation will help your mother focus on something other than the cancer, and empower her in a way, then it could be seen as a positive. Especially if she sues to help other women, not just for putative damages.

nursegracer also points out the two red flags that stood out for me when I first read this post. It'd be good to see how the implants might affect any possible litigation.

This is also a good reminder for everybody to be their own best advocate. When I first found my lump at 24 all the doctors told me it was nothing, but given my family history and concerns I pushed it through. Two weeks later I was diagnosed with breast cancer. Had I listened to the first couple of doctors, I'd be in a lot worse shape right now.
posted by kendrak at 12:31 PM on January 3, 2008

What if your mom is the 5th woman who this doctor misdiagnosed? What about the 50th? Or, what if we take only what you know to be true, and she is the only one this doctor misdiagnosed? Would you act any differently if you knew the first two cases to be true?

I guess my point in asking you to think about this is, in our imperfect system, your recourse for mistreatment lies with lawyers and possibly a judge and jury. And inquiring about this doctor's past, filing a complaint with the AMA, finding out if he's ever been sued for malpractice... those are all other things that could help save the lives of his other and future patients. While you don't have to have the intention of burying him and living on the malpractice insurance payout, you do have an ethical obligation to yourselves and to others, I think, to pursue the matter beyond a sense of resignation at terribly unfortunate result. FWIW.

(For those who don't like thought experiments, hypotheticals and ethical duties, I *SAID* FWIW!)
posted by raconteur at 1:04 PM on January 3, 2008

Thanks, everyone, for your thoughts. If I remember correctly, her oncologist looked at the mammogram and said, based on what she saw, the doctor should have caught the lump, although I'm not positive. I think I will go ahead and encourage her to talk to a lawyer (or a few), or, more likely, talk to them with her. It's really a matter of paying medical bills at this point, although you're right, I think feeling like she can do something to fight this outside of her body in some way (she's having a double mastectomy this week, so the fight happening inside her body is a sensitive issue right now), might help her feel like she has a say in what happens, at least in some way. Even if she just ends up filing a complaint against him and not worrying about a lawsuit at all, I want her to feel like her voice matters.
posted by odayoday at 1:25 PM on January 3, 2008

I'd just urge your mom to not give into defining the cancer solely in terms of the anger and bitterness and blame of "this isn't fair, so someone fucked up and should pay." That frame of mind can get really poisonous really fast.

Also, she should look into support groups...several of them. If she doesn't like the vibe of one, try another. She might find Art. Rage. Us.: Art and Writing by Women with Breast Cancer to be an inspiring read after the mastectomy.
posted by desuetude at 2:44 PM on January 3, 2008

Alternatively, why not report the doctor to the doctor's registration board/health care complaints commision or whatever your local thing is? That is, if your intent is to prevent further mistakes. If compensation is a priority, then obviously that wouldn't work.

The good thing about the complaint is that it would be reviewed by peers. And the doctor would be under the scrutiny of people who understand. And it wouldn't cost your mum anything. Just a letter.

Good luck to your mum. Cancer sucks.


Oooh, that's what you just said. Yeah, complaint is certainly an alternative.
posted by taff at 2:48 PM on January 3, 2008

Do not simply speak to one lawyer. You may need to speak to a few lawyers before you get a good idea of the chances of this case proceeding.

The truth is that depending on where you live, it may be hard to find someone who will even take your case. Medical Malpractice claims are hard to prove because they require a lot of information and a lot of expert testimony - both of which are expensive. Attorneys may not be willing to take your case if your state limits the awards available to plaintiffs in medical malpractice claims. (So-called "Tort Reform.") The bottom line is that many attorneys may look at the case as a loser even if it can be proven, because they wont make enough to make a profit on it.

I would first speak to a support organization in your state for survivors and victims of breast cancer. They will have a wealth of information available to families, even information about proceeding legally.

Best of luck to both you and your mother.
posted by greekphilosophy at 3:06 PM on January 3, 2008

Had she spent it in lawyer's offices and courtrooms ....

Again, I'm *not* advocating either suing or not suing. But some of you have funny ideas about lawsuits. If the lady does sue, the "time spent in lawyers' offices" will be trivial compared to the months or years a lawsuit can take to settle, and the odds are over 90% that she will never see a courtroom.
posted by JimN2TAW at 3:56 PM on January 3, 2008