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Janet Tompkins is a 42-year-old part-time editor for a national trade journal. She is married to a lobbyist. They live in Chevy Chase, Md., with their two children, ages eight and 10. And Janet is dying of breast cancer. Her husband, Steve, calls your office one morning. He and his wife are interviewing lawyers to pursue a medical malpractice case. This is what happened, he says: Because of a strong family history of breast cancer, Janet had religiously performed self breast exams and received yearly mammograms starting in her early 30s. She had a history of cystic breasts. Nonetheless, the lump that she felt in her left breast two and a half years ago seemed unusual. She immediately brought this to the attention of her ob/gyn, who examined the lump, but did not seem alarmed. “Just to be safe,” the ob/gyn referred Janet for a targeted mammogram and sonogram of the left breast. The mammogram was negative, but the sonogram showed a “suspicious lesion.” Janet was referred to a breast surgeon, who performed a needle biopsy under local anesthesia in his office the following day. Janet and Steve were up most of that night. At 9:45 a.m., the surgeon called. “Good news! It’s a benign cyst,” he told them. “Keep an eye on it, and call me right away if it gets bigger. In any event, you should follow up with a repeat mammogram and sonogram in six months.” Janet, cautiously relieved, continued to do monthly breast exams. It was hard to tell if there was any change, but as far as she could determine, the lump was still there, not getting any bigger, or smaller for that matter. She scheduled the mammogram and sonogram six months later as instructed. Again, the mammogram was negative. The sonogram showed the same lesion. Instead of calling it “suspicious” as he had the first time, the radiologist reported “no significant change” and, referring back to the surgeon’s note, wrote that “in light of the biopsy results it is probably a benign cyst.” Based on the radiologist’s report, the surgeon told Janet not to worry. He told her that she could resume her normal routine of monthly breast exams, with annual mammograms and follow-up with her ob/gyn. When Janet went for her mammogram the following year, the technician’s face turned stone cold and white. It was clear that what he saw was not good. He called in the radiologist immediately. The radiologist asked to do a biopsy then and there. The specimen was sent to the lab to be read right away. The diagnosis of cancer was made that day — almost two years after Janet had first brought the lump to her doctor’s attention. As it turned out, the surgeon who performed the needle biopsy in his office had missed the tumor completely. By the time Janet’s breast cancer was diagnosed, her prognosis for long-term survival was poor: The primary tumor was more than five centimeters in diameter and had spread to her lymph nodes. Janet underwent a radical mastectomy, followed by chemotherapy and radiation. Despite the most aggressive treatments, four months later the cancer was found in her liver. It has now spread to her lungs. She is at home on oxygen and continuous narcotics for the pain. She is not expected to live another three months. When Janet went to see her ob/gyn after being diagnosed with cancer, the doctor was hesitant to talk about her colleague, the surgeon. She acknowledged that “this was a slow-growing cancer,” and agreed that “it was probably there when the surgeon did the original biopsy.” She followed with, “But sometimes they’re hard to find.” To her credit, the ob/gyn told Janet that it might be a good idea to consult a lawyer. Steve asks over the phone if you can come to the house in the next day or two to meet with Janet. They are eager to decide about a lawyer that week. ARE YOU GOOD ENOUGH? Delayed diagnosis of cancer is among the most common of medical malpractice cases. This fact pattern is a composite of several delayed-diagnosis cases that we have pursued and serves as a good starting point to discuss case selection. If you receive a call like this from a potential client, you must first decide, frankly and honestly, whether you are competent to handle a case of this complexity and importance. Delayed diagnosis of a deadly disease is not a case for a first- or second-timer. Sometimes you’re ethically bound to send a strong lawsuit to another attorney. But if you are confident in your experience, then tell Steve that you will come to his home and meet with him, his wife, and their children. At this meeting, you must approach the discussion of these tragic events openly and compassionately. You must be ready to offer competent advice on a wide range of legal and practical issues. You need to be prepared to speedily and professionally investigate the case if you are retained. Without regard to expense, you will have to throw yourself into this suit. Remember, Janet is dying. If for lack of experience or time or resources, you can’t do her justice, don’t take her case. IS THE HARM BAD ENOUGH? Assuming you can serve a potential client well, the next threshold consideration in any medical malpractice case is the evaluation of damages. Is monetary compensation realistically available to Janet and her family? The truth is that doctors and hospitals make mistakes all the time. Fortunately, most mistakes are minor or are caught before any lasting harm is done. For a lawsuit to be worth pursuing, there must be a significant difference between the probable outcome minus the mistake and the actual outcome, and that difference must be attributable to the malpractice. In other words, the emergency room doctor who blows the diagnosis of appendicitis on Tuesday, only to make it correctly on Friday, may have been negligent — but unless something really bad happened to the patient as a result, there is no case. Likewise, the perfectly healthy prospective client who is sitting in your office two years after his illness, complaining about how he “almost died,” probably doesn’t have a case. On the other hand, 98,000 people every year die from medical errors. Most of those people probably did have cases. There is no question that Janet and Steve have suffered significant harm, and that a claim is warranted. Janet is a young woman in the prime of her life. She’s a wife and the mother of two small children who depend on her. She earned a good salary. Her pain and suffering are tremendous. Under any jurisdictional analysis, the economic and noneconomic damages should be substantial — if her death was avoidable. CAN YOU CONVINCE A JURY? Whether a jury can be persuaded that Janet’s death under these painful circumstances was avoidable absent the malpractice is the third important consideration. Can liability be explained in a way that makes sense to the average person? Janet and Steve’s case “sounds right.” Here is a woman who took responsibility for her own health and who followed her doctor’s instructions to the letter. Her cancer was likely present and missed by the surgeon during the initial biopsy. It was a slow-growing cancer. Had she been diagnosed two years earlier, it makes common and medical sense that the outcome would have been better. In cases of delayed diagnosis, the defense will often raise the crucial question of “how much better?” They will argue that any treatment would have been essentially futile. Can you take the facts as presented and persuade the jury that, to the contrary, the malpractice changed the medical result for the worse? LINE UP THE FACTS So should you agree to look into Janet’s case? Based on these considerations, yes. Now take these steps as quickly as possible: 1. Obtain all medical records, pathology slides, mammograms, and sonograms. 2. Retain an oncologist to look at the cancer issues — in particular, what specific effects the delay in diagnosis had on the outcome, whether it is reasonable to assume that the cancer was present when the surgeon did the original biopsy, and what the prognosis would have been if the cancer had been treated two years sooner. 3. Retain a surgical expert to look at the technique used by the surgeon in performing the needle biopsy. 4. Retain a radiologist to look at the films and to evaluate the appropriateness of the second report that the persistent lesion was benign. 5. Prepare and arrange for a videotaped deposition of Janet to preserve her testimony for trial. 6. Assess and determine the appropriate jurisdiction and venue for the case. Be prepared because in the D.C. metropolitan area medical malpractice cases are vigorously defended by a relatively small group of excellent, experienced attorneys, who will challenge the case on all fronts. These lawyers have no problem getting experts to mount a defense, no matter how egregious the doctor’s conduct seems to you. They also have the resources to spend whatever is necessary to defend their client. And doctors take being sued very personally and often do not want to settle even bad cases. For these and other reasons, never promise a client a “quick settlement” in a medical malpractice case. If ever you think a case is indefensible, think again. Take those cases where the damages are serious and demonstrable, the negligence is readily explainable, and the victim is sympathetic. Take Janet and Steve’s case, but only if you have the time, money, and experience to win it. That said, there is no foolproof formula for case selection. If you care about people and have a nagging sense of justice, someday you will deviate from these words of advice and take on a client simply to redress a wrong. Which is why we work 60-hour weeks. Good luck! Bruce J. Klores is a partner and Lesley S. Zork is an associate in D.C.’s Bruce J. Klores & Associates. Klores previously served as president of the Trial Lawyers Association of Metropolitan Washington, D.C. Zork, a former labor and delivery nurse, serves on the Steering Committee of the D.C. Bar’s Tort Law Section. They can be reached at [email protected] and [email protected], respectively.

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