Injured - The FindLaw Accident, Injury and Tort Law Blog

Breast Cancer Misdiagnosis: When to Sue

Almost one in every eight American women will develop invasive breast cancer at some point in their lives. And sadly, many of those women won't find out they have breast cancer until long after they should. According to one medical website, a whopping 61 percent of all medical malpractice claims involving breast cancer patients are related to alleged delays in diagnosis.

Misdiagnosis -- whether diagnosing an issue that doesn't exist or failing to diagnose one that does -- is a form of medical malpractice, and doctors that fail to diagnose breast cancer can be liable.

Misdiagnosis and Negligence

If you think a doctor failed to diagnose you with breast cancer or gave you an erroneous diagnosis, you may have a valid medical malpractice claim. And most medical malpractice claims are alleging a form of negligence on the part of a doctor or other medical professional. To prove medical malpractice due to negligence, you would need to demonstrate four essential elements:

  1. Duty: That the doctor owed you a duty of care, generally present in any doctor-patient relationship;
  2. Breach: That the doctor breached this duty by misdiagnosing your breast cancer when a reasonably competent doctor would not have;
  3. Causation: That the doctor's misdiagnosis -- and not some other factor -- caused your harm, which is likely in a failure to detect breast cancer in its earliest stages;
  4. Damages: That the harm you suffered due to the misdiagnosis is quantifiable and compensable, to some degree.

Diagnosis and Complications

Any time you are claiming a duty of care for a doctor or a breach of that duty, the doctor will be judged against a reasonably prudent doctor and what she would've done under similar circumstances. So if your doctor did exactly what any other competent doctor would've done in the same scenario, it will be difficult to prove malpractice.

And medical malpractice claims can be especially complicated, requiring detailed medical records and patient data, as well as experts to testify to both your injuries and whether your doctor's misdiagnosis was out of the norm for similar medical professionals. If you're considering filing a medical malpractice claim based on a breast cancer misdiagnosis, talk to an experienced injury attorney first.

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