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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 health.

"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 medicine."

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 mammograms.

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 medical professional.

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.

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