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I want to know if there is a possible lawsuit in this instance and what I should be advising the person involved to do now.

Hoboken, NJ |

A relative of mine had a mammogram, breast ultrasound, and pelvic ultrasound all on the same day in the same radiologist’s facility. The pelvic ultrasound had been ordered because she was experiencing abnormal bleeding. This all took place in mid-July, but during this time the bleeding had temporarily stopped. In early September, the bleeding started again, and she remembered that she never got the test results or heard from her doctor. She called the gynecologist’s office and they said that although they got mammo results, they never got the ultrasound. She then called the radiologist’s office, and they “thought they sent them.”
The bad news is the ultrasound showed that she had thickening of the lining of her uterus and now needs to undergo further testing and cancer screening. I k

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Attorney answers 2


1st lets hope that all goes well for your relative, and this turns into, "No Harm, No Foul" - I tell potential clients all the time when I advise them that they have a medical malpractice case - the good news is you have a viable medical malpractice case, the bads news is that you have a viable medical malpratice case because that means something really bad happened to you. For your relative, let's hope that the bad news is that she does not have a medical malpractice case, and the good news is that she does not have a malpractice case - because that means she is fine.

That said, assuming the tests do show cancer, then you would have to assess the type of cancer, the stage of the cancer, and the exact time period of delay in the diagnosis of cancer - which in this case, appears to be about 7 weeks or so. You would have to be able to get an expert to give the opinion that the 7 week delay in diagnosis was a substantial factor in increasing the risk of harm from the cancer. In my experience in handling delay in diagnosis of c ancer cases, a 7-8 week delay is unlikely to be a substantial factor in increasing the risk of harm from the cancer.

Even if it was, the defense gets to argue how much of the harm from the cancer was from the cancer itself - versus the harm from the delay in diagnosis, and will ask a jury to put a percentage on it - let's say that 90% of the harm was from the cancer itself, and 10% was from the delay - then in general, your relative would only get 10% of the total value of the harm from the cancer.

Since medical medical malpractice cases are so time consuming, and so expensive to pursue, there would be a very high likelihood that many experienced medical malpractice attorneys would not take the case because the end result of the case - if you could even get 10 or 15% of the value of the case - would not be enough to support the pursuit of the case.

Finally, it is still a little early for this assessment. For now, tell your relative to get the testing ASAP, focus on her care, and when the results are in, then reach back out to an attorney for a more complete, fact based, assessment. Good luck .

Each case is fact senstive, so all answers should be viewed as general advice only, and should never replace a thorough and in depth consultation with an experienced attorney. Further, an answer should not be seen as establishing an attorney-client relationship.


She does not yet know whether she has any damages or injury. If she later discovers that she has cancer, then the issue will be determining the precise type of cancer and the stage at which it is. The issue would be whether the delayed diagnosis caused the cancer to advance to something treatable to something that it more likely terminal.

I have a strong suspicion that the delay didn't cause your relative any change in her outcome. You describe a possible delay in treatment of about a month. For argument's sake, let's expand that to 6 months. Even a 6-month delay is usually insufficient for your attorney or a medical doctor to argue that the cancer evolved from say, Stage I, to a terminal Stage IIIB or Stage IV. Cancer doesn't typically spread that quickly. If your relative cannot show that the delayed diagnosis caused her outcome to become significantly more gloomy, then she would not have a "damage model." These medical negligence lawsuits can't just be based on medical error; the plaintiff must also have a demonstrable injury that the court can award money to compensate them for.

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