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Topic: Medical Malpractice lawsuit?

Forum: Employment, Insurance, and Other Financial Issues —

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Posted on: Aug 8, 2019 03:17AM

Irishlove wrote:

Asking for a friend that is not on this forum. The pathologist misread the biopsied specimen and labeled it invasive b.c. A mastectomy was performed based on the report. The pathology report/specimen was given a second look by an outside lab, and it was rediagnosed as non-invasive after the surgery. In the meantime some of the bills are being paid by insurance while others, including bills that the hospital (where the pathologist works) did not submit to insurer. The largest $$$$ billing has been contested , but insurer said once it's past 60 days, they will not handle the grievance and it's between the patient and the billing company/hospital.

After a legal review it was advised that medical malpractice in home state are rarely successful. Of concern is other medical conditions could be gravely affected by the stress.

An idea was discussed about contacting the medical provider directly or hospital administrator and alerting them to a potential lawsuit to encourage a settlement for the outstanding medical bills as payment. This person is not a litigious individual, however the error has caused a great deal of pain, lymphadema and depression. Any input in helping to make a decision is greatly appreciated.

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Aug 8, 2019 04:09AM - edited Aug 8, 2019 04:09AM by AliceBastable

Could you clarify on the terms "invasive" and "non-invasive?" I think DCIS (ductal carcinoma in situ) is non-invasive but still treated as cancer, with many patients having mastectomies.

Endometrial cancer 2010, basal cell multiples, breast cancer 2018, kidney cancer 2018. Cancer's a bitch, but I'm a bigger one with more practice. Dx 5/2018, ILC/IDC, Left, 2cm, Stage IA, Grade 2, 1/1 nodes, ER+/PR+, HER2- Surgery 7/11/2018 Lumpectomy: Left; Lymph node removal: Sentinel Surgery 8/8/2018 Radiation Therapy 10/29/2018 Whole-breast: Breast, Lymph nodes
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Aug 8, 2019 06:19AM gb2115 wrote:

I think (I could be wrong) the reason why so many medical malpractice cases fail is you have to really prove gross negligence or intent to harm. A mistake, though most unfortunate, isn't necessarily those things.

Dx IDC in October 2016, stage 2A, 1.2 cm ER/PR+ Her2-, Grade 2, 1/3 nodes. Mammaprint low risk luminal A, Lumpectomy + radiation + tamoxifen. Age 38 at diagnosis.
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Aug 8, 2019 10:23AM BevJen wrote:

Hi, there,

The first thing I would tell your friend to do is to contact a medical malpractice/personal injury lawyer. In many areas of the country, they advertise a lot. If a particular firm/lawyer doesn't do med Mal, they will refer. There is usually no charge to the plaintiff in these types of lawsuits -- they are contingency based, meaning that the plaintiff would only have to pay costs but no lawyer's fees -- the lawyer would get a percentage of the ultimate settlement or result of a lawsuit (usually around 30%)

I would NOT try to negotiate with the hospital on my own, unless your friend is an attorney. They are staffed up with big guns to fight these kinds of things, so they are not going to be so willing to settle. For your friend's peace of mind, she should contact an attorney. If she doesn't know who to contact, usually a county bar association will have a list of attorneys in a particular county, as well as their specialties.

Dx 11/2003, ILC, Left, Stage IIIC, ER+/PR+, HER2- Dx 6/2006, ILC, Stage IV, metastasized to other, ER+ Dx 5/2019, ILC, Stage IV, metastasized to liver, ER+/PR+, HER2- Surgery 7/5/2019 Targeted Therapy 8/1/2019 Ibrance (palbociclib) Surgery Lymph node removal: Left, Sentinel; Mastectomy: Left, Right; Reconstruction (left): Pedicled TRAM flap; Reconstruction (right): Pedicled TRAM flap Radiation Therapy Chemotherapy TAC Hormonal Therapy Faslodex (fulvestrant) Hormonal Therapy Tamoxifen pills (Nolvadex, Apo-Tamox, Tamofen, Tamone) Surgery Lymph node removal; Mastectomy; Reconstruction (left): Pedicled TRAM flap; Reconstruction (right): Pedicled TRAM flap Hormonal Therapy Femara (letrozole)
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Aug 8, 2019 10:37AM Beesie wrote:

I can't imagine a situation where an area of a cancer that is large enough for a MX would be misread to be invasive when in fact it's DCIS (assuming you meant DCIS when you said non-invasive). That type of error might happen only with tumors that are tiny - 1mm or maybe 2mm in size. That size small invasive tumor would not require a MX - although a patient may opt to have a MX. So if the MX was your friend's choice when a lumpectomy would have been medically feasible, there is no malpractice there.

Similarly, as AliceBastable said, DCIS, while classified as being a pre-cancer or a non-invasive cancer (depending on who you talk to) is sometimes widespread, in which case a MX will be recommended. So if the area of concern was large and a MX was medically recommended, the recommendation would have been the same whether the tumor was all DCIS, some DCIS with a little bit of invasive cancer, or all invasive cancer.

There is probably a good case to be made to fight the insurance company, but no case for malpractice.

“No power so effectually robs the mind of all its powers of acting and reasoning as fear.” Edmund Burke
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Aug 8, 2019 11:08AM edwards750 wrote:

Medical malpractice is hard to prove. Bessie explained it well as usual. They are contingency cases but most law firms will not even take a case unless it’s almost a slam dunk because they will spend a lot of $ hiring investigators, interviewing medical staff, requesting records, etc. the medical fraternity is a close knit group that protects their own.

I’m certainly not suggesting NOT going the malpractice route but be aware it is extremely difficult to win.

We had a lady on this forum who was misdiagnosed. She had bladder cancer and the doctor kept treating her for UTIs. When it was discovered it was bladder cancer it was too late plus this lady waited too long to get a second opinion. She consulted an attorney and they refused to take her case. One reason was her age - she was 70 and another was the time that had elapsed between the initial DX and the correct one.

It was so sad she suffered so much and passed away a year later.

Insurance companies are hard nosed about the 60 day appeal. My DH and I won an appeal but we filed immediately after we were billed.

Good luck to her. Legal consultations with attorneys are free so maybe she could at least get a legal opinion as to whether it was a legit case.


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Aug 8, 2019 07:16PM Irishlove wrote:

Thanks everyone for your response. My friend had met with an attorney who specializes in medical malpractice. Due to the low recovery rate, he no longer accepts those cases. A referral was made (no one locally accepts these cases) but they wanted to get some feedback from others before deciding what coarse of action, if any, to take. Statue of limitations in home state is three years.

The biopsy was read as invasive. Originally a lumpectomy/radiation was the plan. An MRI showed more "areas of concern", so based on the invasive and the other potentials, the friend and surgeon felt a mastectomy due to time constraints investigating other areas of concern, was needed.. The pathology after the mastectomy came back as noninvasive and the other areas of concern were false positives. The noninvasive area was less then 2 c.m. Had this been known it was noninvasive they would not have opted for a mastectomy.

As for insurance problem, the hospital/billing did not submit the bill to the insurer but billed patient directly many months after date of service. Due to the delay, the insurance co. will not help with a grievance. So they are fighting both parties. Hope that covers the details. I'm guessing they will have to pay that huge bill.

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Aug 8, 2019 09:15PM Beesie wrote:

The additional information is helpful.

Was all of the biopsy tissue re-analyzed or is the issue that the surgery only found DCIS? It does sometimes happen that there is only a very small invasion and it's all removed during the biopsy. But I'm assuming that the biopsy sample was reassessed after the surprise from the surgery paholog, and only DCIS was found.

From what I've seen on this site over the years, a 2cm area of DCIS, along with other areas of concern seen on an MRI, would usually result in 2 options being presented to the patient: 1) Biopsy all the other areas of concern, and if they are negative, proceed with a lumpectomy followed by radiation; or 2) Don't bother with the biopsies and have a mastectomy, with rads usually not being required after a MX.

A finding of invasive cancer does not dictate the need for a MX. In fact, research has shown that a lumpectomy + rads is at least as effective (from a survival standpoint) as a MX. A MX is recommended when an area of cancer is deemed to be too large for a successfu lumpectomy, or when there are several areas of cancer, particularly if they are multi-centric. Either of these situations can occur with invasive cancer or with DCIS, and in fact because of how DCIS spreads (through the ductal system rather than forming into a solid mass), DCIS is more likely to be widespread and more often requires a MX.

All that to say that while I understand your friend's anger, and while the misreading of the biopsy would infuriate me if it had happened to me, I don't see any case for malpractice. There appears to have been an error, but the decision to have a MX was optional, and the same decision might easily have been made even if the biopsy had found DCIS.

The payment issue, now that's another story. Personally I'd raise hell with the hospital at the highest levels.

“No power so effectually robs the mind of all its powers of acting and reasoning as fear.” Edmund Burke
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Aug 8, 2019 09:54PM edwards750 wrote:

I second that Bessie. It’s the hospital’s fault the bill didn’t get to the insurance company in time. I would fight to the bitter end with them. Squeaky wheel gets the grease. My friend appealed a charge - $5k - 3x before the insurance company caved and paid it.

Good luck!


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Aug 8, 2019 10:49PM MelissaDallas wrote:

One of the key issues with med mal cases is what is “standard of care” for the condition and did treatment meet standard of care. I work for an attorney who does some med mal cases. Honestly, it doesn’t sound like much of a case to me.

Also, the “constraints of time” to investigate the other areas seen on MRI sounds off to me. That is generally not an issue and a pretty routine situation unless the patient just doesn’t want to wait

LCIS, extensive sclerosing adenosis, TAH/BSO & partial omentectomy for mucinous borderline ovarian tumor.
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Aug 8, 2019 11:41PM Irishlove wrote:

Thanks again for input. The MRI was conducted by same hospital, but read by radioligists located 2 hrs. away. That meant starting over with a new medical team for biopsies of "suspicious areas", while believing there was already invasive cancer (she had a biopsy). She has another medical condition that makes travel very difficult. A decision had to be made in short time due to o.r. scheduling, MO appts. for rads and time constraints. Believe me she much rather not deal with any of this, but those bills based on a misdiagnosis is infuriating..

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