Missing the Diagnosis
When a mammogram fails, does a woman have the right to sue?
Then 43, Fubini had received similar reports after three other mammograms over the previous five years. Her latest, she thought, was yet another clean bill of health.
Several months later, however, her confidence was shattered: while doing a routine exam of her left breast, Fubini found a lump. A biopsy was performed. It showed that Fubini had cancer -- specifically, a ductal adenocarcinoma that eventually was determined to have spread to her lymph nodes.
Fubini had a mastectomy, chemotherapy, and radiation. She also fought back in another way: filing a lawsuit against the radiologist she believes should have detected her cancer before she did.
"I had started wondering afterward how I could have fairly advanced cancer -- they said I was stage three -- when I had had a mammogram six months before I felt this lump," she said. "I really started to think about whether something had been overlooked."
A Major Case That Sent Shock Waves
Last May, after just three hours of deliberation, a Massachusetts jury awarded Fubini $5.5 million, one of the largest malpractice awards in state history.
The jury agreed with the testimony of expert witnesses who claimed that her radiologist should have discovered Fubini's cancer on mammograms done in 1989 and 1992.
Fubini, whose cancer recurred and has now spread to her ribs, said she was "relieved" by the jury's decision.
"If I could have advanced breast cancer -- just six months after my clean mammogram --then everything they tell women about mammograms, and self-examination, and testing is all a sham," she says.
The Truth About Mammograms: They're Not Perfect
Fubini's case illustrates a growing awareness that mammograms aren't perfect. Indeed, according to the Food and Drug administration, studies show they reveal about 80 of every 100 cancers. At the same time, more and more patients are filing lawsuits when lesions are found after earlier mammograms failed to detect them.
Last year alone:
Radiologists are well aware of such cases. "The number of medical malpractice lawsuits alleging injury due to missing or delayed diagnoses of breast cancer has increased so rapidly that such lawsuits have now reached epidemic proportions," wrote Leonard Berlin, MD, chairman of radiology at Rush-Presbyterian-St. Luke's Medical Center in Chicago, in the November 1999 issue of the American Journal of Roentgenology.
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