Breast Cancer Misdiagnosis / Delayed Diagnosis Attorney Interview

This is a transcript of an interview with Daniel M. Hodes, who has practiced law in California since 1981. He spent his first six years as a medical malpractice defense lawyer and then the last 20 years as a plaintiff lawyer, specializing, virtually exclusively, in medical malpractice cases with a very strong emphasis on delay in diagnosis of cancer cases, most notably breast cancer cases.

In 1997, Attorney Hodes, obtained the largest wrongful death malpractice verdict in the history of Orange County in a delay in diagnosis of cervical cancer case – nearly $11 million. He also obtained what was then the largest wrongful death malpractice verdict in a breast cancer case in 1991 – over $1 million.

We spoke with him about breast cancer misdiagnosis and delayed diagnosis cancer cases.

FreeAdvice: What are breast cancer misdiagnosis and a delayed diagnosis?

Dan Hodes: Breast cancer delay in diagnosis cases essentially come in four different forms. Form number one would be the situation where a woman discovers a lump on examination. A mammogram is ordered, which comes back as negative. Not all breast cancers are picked up on mammography. So the question then becomes, should the clinician follow up further, or is it reasonable, under that circumstance, for that physician to conclude that in the face of a palpable mass with a negative mammogram that breast cancer does not exist.

The standard of care does require more in the face of a palpable mass and a negative mammogram. The standard of care requires an ultrasound, and if that mass still persists, a biopsy. So, scenario number one is the failure to follow up on a clinically palpable mass in the face of a negative imaging study.

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Scenario number two is a situation where there may or may not be a palpable mass, but the mammogram and/or ultrasound study is misread. And that happens, unfortunately, not uncommonly.

Scenario number three is a situation where a biopsy slide is misread by a pathologist. Again, that happens more often than it should. A fourth scenario would be where a surgeon, in attempting to do a biopsy, simply doesn’t get the lesion which he or she sought to get. That happens with some frequency as well. Those would be the four commonest scenarios, the first three being more common, and the fourth being the least.

FreeAdvice: Who can be held liable in these types of situations?

Dan Hodes: In scenario number one, where there’s the failure to follow up on a mass, that would be either the primary care physician or the OB/GYN who’s doing that examination. In scenario number two, that would be the radiologist for failing to appreciate a mass. In scenario number three, it would be the pathologist for failure to properly diagnose. In scenario number four, that would be the surgeon or the radiologist – depending upon who’s doing the biopsy, and both do.

FreeAdvice: How would somebody know if their case has any legal merit – as the timing is so difficult to pinpoint?

Dan Hodes: If there is a scenario under which a woman has found a lump and has brought it to the attention of her physician and underwent either imaging study or biopsy and then there is a delay followed by a diagnosis, then that woman would know, presuming that it’s the same lesion that turned out to be a cancer for which she might have been misdiagnoses.

In terms of a mammography miss, if there was never any palpable lump, then that woman might not know at the time of diagnosis that there is, or could be, a problem. I think it would be a wise thing for someone diagnosed, particularly with a larger cancer that has undergone regular mammography, to obtain her previous studies and have them looked at.

FreeAdvice: What sort of proof would they need to get? Medical records? Anything in particular?

Dan Hodes: If someone feels that there was a delay in diagnosing their breast cancer, a lawyer would need all of the relevant medical records. If that woman has been treated by an OB/GYN for some period of time, it would be important to get all of those records. In other words, get the records of that person who has been examining her breasts. It would be important to get all of the mammogram and other breast imaging reports and original studies. It would also be important to obtain either original or recuts of the pathology studies.

FreeAdvice: How long must the delay be to become consequential?

Dan Hodes: Undiagnosed and untreated breast cancer is invariably a progressive disease. So any period of delay is not good. From the standpoint of a case, it would be incumbent upon the plaintiff to prove that the period of delay was of sufficient length so as to have impacted negatively on either prognosis or treatment. If I’m looking at a breast cancer case, if there’s a delay of six months or more, that is something that I would take a very careful look at. I’ve actually handled cases involving delays of less than that, which involve higher grade cancers. As a general rule, I would say that six months and beyond would impact significantly on treatment and prognosis.

FreeAdvice: What should someone do if they feel as though they’ve been misdiagnosed?

Dan Hodes: Obtain prompt, appropriate treatment. Once that is at least underway, or at least there’s a plan for that, then I think it would be wise to collect up records and mammograms - ideally, to get original pathology slides and to submit them to a lawyer that is well-versed in these types of cases.

FreeAdvice: Is there anything that they shouldn’t do?

Dan Hodes: Don’t wait to contact an attorney as the statute of limitations in California is one year.

FreeAdvice: Have you ever seen instances of medical records being altered by medical personnel?

Dan Hodes: I have seen that. It’s best to have the patient herself obtain a copy of those records. I will have the prospective client obtain the records herself and I will look at them carefully. If it’s a case that we have a high level of interest in, we will then ourselves obtain those same records. On occasion, you’ll find that there is a discrepancy between that which the patient obtains and that which we obtain.

FreeAdvice: Does the one year statute of limitations in California begin when they discover that they’ve got cancer?

Dan Hodes: It’s one year from the date that they knew or had the means to know that they suffered injury or damage as the result of negligence. In the case of a persisting lump, once the cancer is diagnosed, that patient knew or should have known that there was a likely error, such that the statute would start running from the date of diagnosis.

Now, it’s not quite so clear when you’ve got a situation where a woman has had regular mammograms, one or more of which might have been misread in the past. Once she’s diagnosed with the cancer, the question becomes, should she then have been suspicious that some of her previous mammograms were misread. And that’s not an easy question to answer. That’s more of a question of fact for a jury to determine. But if I can make a general point, it would be that – in California at least – one really should commence one’s case within a year from the date of diagnosis so as to avoid any statute of limitations concerns.

FreeAdvice: What is the doctor’s course of action if a mammogram comes back negative but the lump persists?

Dan Hodes: What the doctor should do is entertain the possibility that this was a false negative study. That is, it was correctly read as negative, but in fact, it was a false negative. That happens in a mid single digit percentage of cases. A physician cannot be satisfied with a negative mammogram in the face of a persisting palpable lump. The standard of care requires an ultrasound, and if the lump persists, the standard of care requires sticking a needle in there and getting a tissue diagnosis.

FreeAdvice: What kind of documentation is required to show breast cancer misdiagnosis?

Dan Hodes: It would be an overall analysis of the records, the mammograms, the slides, and any other imaging studies. That entire package is necessary for a capable lawyer to analyze and assess.

FreeAdvice: Can you provide a timeline of what happens after a person contacts you with a cancer misdiagnosis claim?

Dan Hodes: What I typically ask for is a detailed chronology of the events. I would ask that they collect their records, obtain their mammograms and slides and forward them to me. Again, I’ll then carefully look at them myself in consultation, with an expert, and I’ll have a general sense as to whether I think I can be of assistance to them. That’s a timeline that takes probably 30 to 60 days or so to complete.

We work on what’s called a contingency basis, and I think any responsible malpractice attorney, before they take a case on a contingency basis, has to have a high level of confidence that the case is a meritorious one.

FreeAdvice: What kind of experts do you use?

Dan Hodes: Depending upon the circumstance of the case, an OB/GYN or a radiologist specializing in breast imaging - or a breast oncologist. It’s typically a combination of these. Sometimes I’ll also consult with a surgeon, depending upon what the issues are.

FreeAdvice: Does the person pay for the expert themselves or is that just included in your fact finding costs?

Dan Hodes: Once we decide to take a case on a contingency basis, we will advance all of the cost of expert reviews. When we’re in the workup stage, it would depend on the agreements that are reached as between ourselves and the prospective clients.

FreeAdvice: What can an injured party expect to recover in damages in California?

Dan Hodes: Unfortunately, we are limited in California to $250,000 in non-economic damages. There’s no limitation on economic damages. Economic damages include loss of earnings, medical expenses and un-reimbursed life care planning costs.

FreeAdvice: How are damages calculated?

Dan Hodes: Non-economic damages are capped by law. Economic damages become a little bit complicated. For instance, if a woman’s stage at diagnosis is such that she is more likely than not to recur and not survive, in California, one can recover the future loss of earnings and the future cost of medical care, even though that person, at this point, is cancer-free.

In other words, the patient is diagnosed with advanced Stage III or Stage IV disease, and if it’s our position that that patient should have been diagnosed at a Stage I or Stage II, our argument would be that we are entitled to recover now for all of the future damages that are more likely than not to occur. That would include future loss of earnings and future cost of care.

FreeAdvice: What questions should the injured person ask a lawyer such as yourself before hiring you?

Dan Hodes: I think it’s important to know that attorney’s level of experience in handling cases like this because they are medically complex and it requires an ability to interact with various types of experts in various fields. I think a prospective client ought to know that this lawyer has handled many of these cases in the past.

FreeAdvice: What about trial experience? Should they look for somebody that has had a certain amount of trial experience?

Dan Hodes: Of course. A larger percentage of medical malpractice cases go to trial than other types of cases, so it’s important that a prospective client know that this lawyer has got an extensive trial experience.

There’s an organization called the American Board of Trial Advocates (ABOTA) that confers membership only to those that have tried certain numbers of cases and have distinguished themselves in the community. I think you’d want an ABOTA member who specializes in these types of cases.

FreeAdvice: Are you a member?

Dan Hodes: Yes.

FreeAdvice: How are breast cancer misdiagnosis lawyers compensated?

Dan Hodes: We work on what’s called a contingency basis, meaning that we don’t charge or earn a fee unless we obtain a recovery.

FreeAdvice: Is that fairly common in the industry with these kinds of cases?

Dan Hodes: Yes.

FreeAdvice: Do you have any final comments?

Dan Hodes: I would just add that breast cancer is the commonest form of cancers amongst North American women. The lifetime risk is one in nine, so it’s a disease that, unfortunately, is with us to stay. When you have those kinds of numbers, there’s going to be a certain small percentage of women who, in spite of their best efforts, didn’t get a timely diagnosis. Those women deserve quality representation and compensation when appropriate.

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