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Phoenix or Tucson AZ! A doctor refused to order an MRI, & now I find out that I am dying of Breast Cancer!

Ganado, AZ |

10 months ago, I received a notice from the Mammography clinic where I had a mammogram done, in another state, advising me to have an MRI due to a suspicious test result. I spoke with the doctor at the hospital in Ganado, AZ about having it done. He examined me, & told me that he could not feel a lump, & told me that the MRI was not necessary. He told me "You do not have cancer, you don't need an MRI!". In December 2011, back home in Indiana, I found out that I have "advanced stage 4 cancer". I have roughly 1 year to live. My Oncology doctors have urged me to file suit against this "careless" doctor. I AM STAYING WITH MY PARENTS IN INDIANA. WHERE DO I NEED THE ATTORNEY TO BE LICENSED IN ORDER TO FILE SUIT?

I "was" a traveling nurse, at the time...I can no longer "help others" in that capacity, but hopefully we can save someone else from the same fate, as me. I may not live to see this through, but I have a son, who is a new "daddy", who will soon be without a "Mom", who can see this through to the end. I have grandchildren, who will probably not remember "Gramma". I was told, in Oncology, that I could have had a "lumpectomy" several months ago and not had the cancer metastasize! The doctor was "concerned, because my insurance would not fully pay for an MRI that he felt was not necessary"! If that doctor in Arizona had done his job correctly, I could be in "remission", instead of planning my funeral! God help others with Breast Cancer in Ganado, AZ! I AM HAVING A TERRIBLE TIME FINDING A GOOD ATTORNEY IN ARIZONA, WHO IS NOT AFRAID TO TAKE THIS CASE ON! WHY? I get "strong" answers on avvo.com, but med mal attorneys "buckle" at expense of case on phone?

Attorney Answers 5

Posted

First, don't accept Indiana doctor's prognosis as absolute gospel. I don't want to give you false hope, but I know several people given six months to live, five or more years ago. Keep the faith, an seek a second and third opinion. As for the Dr. (and perhaps the hospital) in Ganado AZ, you need to hire an attorney in Arizona as soon as possible to get the medical records, institute suit, and schedule your deposition - without which - the case will be more difficult to prove. Discuss with the attorney, his thoughts of filing the case in Federal Court - which might not be his preference - but with the right judge, and the right attorney on your side - get you to trial in under a year. There are pro's and con's of Federal Court, and their are pro's and con's in pushing the case forward on a fast track, but these are issues for you to raise and discuss. Good Luck.

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Asker

Posted

Attorney Gold..What is the benefit of Federal Court, as opposed to State or court at a local level?

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Well in Federal Court the Judges are Gods, whereas in most state courts they just think they're God. (Sorry, but I thought you could use a chuckle.) Seriously, Federal Court judges for the most part are Very High Quality Lawyers before becoming judges, they have much smaller caseloads, and are able to push a case if they want to. They hire law clerks, generally from the top universities, who work hard, and are more often correct in their legal analysis than not. Federal judges are more immune from local political pressures because they serve for life. However, many many personal injury attorneys are not comfortable with the rules of procedure and stringent timetables placed on cases by Federal Courts. (Many defense attorney are equally uncomfortable in Federal Court.) Plaintiffs attorneys also do not like that 1) they have to put their experts up for deposition (which increases their cost) and 2) that they don't have as much say in selecting a jury as they do in State Court. Like I said, I think its a judgment call, but if I were in your situation, I would want streamline the process, and I would would want a Plaintiff's attorney who could articulate the pro's and con's of Federal Court, who will, if necessary, litigate in Federal Court (and who has done it multiple times before). You and your case, can not be allowed to wallow in state court procedure (very common here) while defense counsel, and perhaps your own attorney, wait to see what happens. Others would disagree, and will disagree with me, but if I had a client who wanted to see as much as the case through as possible, I'd opt for Federal Court, but note, I'm speaking from experience in NY primarily (but not exclusively) and I and my firm litigate in Federal Court regularly. Although, we generally do not litigate personal injury cases in Federal - because most cases unlike yours cannot be brought in Federal Court -- yours is one where I would opt for the extra expense, and less jury control, over the comfort of state court.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Another thing to discuss is jury verdicts in Apache County, which is largely rural, and I suspect has larger awards (just a hunch) then in the Federal Court which has courthouses in Tucson and Phoenix (easier travel). I'm sure there fine attorneys in Apache County, but I KNOW there are fine attornesy in Phoenix and Tucson. You have some research ahead of you.

Joseph Jonathan Brophy

Joseph Jonathan Brophy

Posted

Mr. Gold deserves a Best Answer for this one. His comments about Federal court are spot on. Actually the costs of Federal court in AZ are unlikely to be greater than the costs in state court if AZ permits depositions of experts- which most states other than NY do.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Thanks.

Asker

Posted

I agree, Mr. Gold does deserve Best Answer! Mr. Gold, Thank you for the chuckle, as well. Being an RN, I am all too familiar with the "God-Syndrome", but in the case with Federal Court Judges, you did give me a laugh. I am considering all of this information, and do appreciate the wealth of knowledge from all of you. Thank you and may God bless all of you.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Thanks. If you would like to discuss at any point, click on my photo and feel free to call.

Posted

You have a "failure to diagnose cancer" type of medical malpractice case, and you should search Avvo's "find a lawyer" for a medical malpractice lawyer in the city where the doctor who told you that you do not have cancer is located. Make sure the lawyer has had failure to diagnose cancer cases before, as they are very complex. I know, I've done a lot of them in Pennsylvania.

Licensed in Pennsylvania & New Jersey & Serving the Nation. Only 29% Fee Deducted. 1-877-258-3083. www.InjuryLawyerPhiladelphia.com

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Posted

If the doctor who advised against the MRI was in AZ, you need to hire a lawyer in that state. Do not try to get your medical records, any reputable medical malpractice lawyer will do that for you if it seems to be a likely case. Failure to diagnose breast cancer is a scenario familiar to all experienced medical malpractice lawyers. As Mr. Lassen correctly pointed out, these can be complex cases. How they play out depends on numerous facts as well as the law of the state on value of a chance of cure. Some states's laws make these very hard cases to win, others such as NY where I practice have legal rules that are less harsh. If you don't find a lawyer on Avvo who seems suitable, check the websites of the AAJ (American Association for Justice) or the NBTA (National Board of Trial Advocacy). Good luck to you.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.

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Posted

First, I agree with the other commentators that you should stay positive and work hard to stave off this terrible disease. Second, I agree that you should so move quickly if you want to maximize your chances of success in litigation. To answer your question, you need a lawyer in Arizona. As a lawyer who actually practices medical negligence law in Arizona, however, I question why anyone would file a lawsuit in federal court where a verdict must be unanimous and the time to trial will almost certainly be significantly longer than in state court. I would be wary of any Arizona lawyer advising you to do this. I also agree that these are complicated cases and you will need to be able to prove that the cancer was essentially curable when you saw the physician in Ganado. That could be a significant hurdle. Finally, you need to determine how the physician that you saw was employed. There may be certain things you must do within a limited period of time to preserve your claim if the physician was working at a reservation facility.

Your claim is probably governed by one or more limitations periods. This means that you must take certain actions within a certain period of time to preserve all of your rights. A limitations period can be very short. I encourage you to speak with a lawyer who handles medical negligence cases in your area as soon as possible. I would be happy to help you find someone.

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Posted

I can't speak for other attorneys, but I supect the problem that you are running into is twofold. First, is the question of who will be party to the claim if your fatal prognosis proves true? In Arizona, an individual's claim for pain and suffering evaporates when they pass away. So the only surviving claims would be for the grief and loss of financial of surviving parents of children. Second is the question of causation. You're not suing for getting cancer, you are suing for damages resulting from the delay. This raises a question of whether, given the extent of your cancer when diagnosed, would a diagnosis ten months earlier have changed the prognosis significantly? The claimant has to prove this to a probability, not a mere possibility. I am not discouraging you from seeking an attorney. It often takes mutiple calls to find someone to look at your case. Most serious med mal attorneys turn down 40 people for everyone we gather records on. One final thought -- IF you cannot find an attorney, you might consider making a complaint to the medical board. I wouldn't do it while you are trying to get an attorney, because attorneys generally prefer not to put claim related information in writing until the case is resolved lest the statements in the complaint be used against you. God bless you (again) for your courage and determination.

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3 comments

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

That is some Draconian, and by Draconian, I mean BS rule on damages.

John M Curtin

John M Curtin

Posted

Draconian or not, it is (sadly) the statutory law in Arizona.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

Oh I believe you. It's just terrible.

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