Missing the Diagnosis
When a mammogram fails, does a woman have the right to sue?
A Simple Mistake, or Negligence?
Given what mammography can and can't do (see Why A Mammogram May Miss a
Tumor), when does a patient have the right to sue?
The answer, experts say, depends on whether or not there's evidence that the
radiologist or someone else involved in administering the test -- such as a
technician -- acted negligently and that this act caused or contributed to a
delay in diagnosis.
"Anybody can sue. The question is will they win. Most will lose. The
point is that there has to be a departure from the standard of care that is
followed or there has to be negligence," said Harvey F. Wachsman, M.D.,
J.D., a neurosurgeon, attorney, and president of the American Board of
Professional Liability Attorneys.
He cautions that women, and their lawyers, must prove that an error by a
radiologist caused a delay in their diagnosis and that the delay harmed their
"If somebody does something wrong, but it does not cause any harm, then
there is no case," Wachsman said. "Most cases are fought not on the
negligence issue -- but on the approximate cause issue. If a woman finds she is
has cancer just six months after a clear mammogram, and it is shown that the
cancer was visible on that mammogram, then that is a case."
Among Radiologists, Fear and Changes
Meanwhile, some radiologists are already taking steps to protect themselves
from malpractice suits.
Phan Huynh, M.D., a breast imaging specialist at the University of Texas
Health Science Center in Houston, says he knows of radiologists who are trying
to get out of the breast imaging business altogether for fear of being sued
over a misread or unclear mammogram. Physicians are also more likely to order a
biopsy of a suspicious mass instead of following it over time using mammograms
and other tests.
"Today, doctors are more likely to biopsy anything that shows up just
because we are worried about lawsuits," says Huynh. "It's defensive
Putting Mammograms in Their Place
Given the legal fears, some women's health advocates are pushing for clearer
public health messages that warn women not to depend exclusively on
Groups such as the National Association of Breast Cancer Organizations say
mammograms should only be done as part of a three-part strategy that includes
monthly breast self-exams and annual clinical breast exams by a doctor or other
Fubini says women need to ask more questions or even seek a second opinion
if they have any concerns about the quality of their mammogram.
"If they have any reason to feel uneasy about the results, they should
act on that," she says. "They should have someone else screen their
mammogram. Women need to learn not to rely too heavily on mammograms."
Michael D. Towle is a regular contributor to WebMD; his
last article was about breast implants.