Articles Posted in Delay to Treat or Failure to Diagnose a Medical Condition

Doctors often fail to diagnose cancer in women with dense breast tissue because mammograms screenings are not reliable for women with this condition. Recent statistics and studies also show that women with dense breast tissue have a higher risk of developing breast cancer. Therefore advocacy groups have been pushing for legislation that requires doctors to report breast density to their patient. In New York, failure to inform a patient about dense breast tissue is now against the law and may support a claim of medical malpractice. The legislation was signed by Governor Cuomo on July 23 2012 and took effect last January. A total of 18 states have enacted dense breast notification laws, and 10 more have laws pending. Who is supposed to do the reporting and what they are supposed to tell patients varies from state to state.

In “Dense Breast Legislation in the United States: State of the States” published in the December issue of the Journal of the American College of Radiology, Soudabeh Fazeli Dehkordy, MD, MPH, and Ruth C. Carlos, MD, MS, from the Department of Radiology at the University of Michigan School of Medicine in Ann Arbor provide a detailed review of the state of this law at states and federal level.

In this medical malpractice case the plaintiff was diagnosed with Stage 1 breast cancer in her right breast. She underwent a right breast mastectomy. She had a family history of breast cancer. Seven years later in 2007 she was diagnosed with ovarian cancer. The plaintiffs alleged that, given the plaintiff’s own medical history and that of her paternal family, as well as her father’s Ashkenazi Jewish ethnicity, defendant’s failure to recommend, prior to November 2007, “BRCA” genetic testing or prophylactic surgery removing her ovaries, which could have prevented the onset of her ovarian cancer, constituted medical malpractice. In reversing the Court below and reinstating the complaint the Court held:

“Here, the allegations in the bills of particulars concerning the period from March 2001 through November 2007, when the patient was under defendant’s care, were that defendant departed from the accepted medical practices of that time by failing to recommend “BRCA” genetic testing and “prophylactic oophorectomy or bilateral salpingo-oophorectomy” to the patient, given her personal and family medical history. Since the respondents’ expert failed to provide any information as to what the accepted medical practices were during the period at issue with regard to BRCA genetic testing, and did not refute or even address (see Berkey v Emman, 291 AD2d at 518) the specific allegations regarding the failure to recommend prophylactic oophorectomy or bilateral salpingo-oophorectomy, the respondents did not meet their prima facie burden on the issue of whether there was a departure from accepted medical practices.

Accordingly, the Supreme Court should have denied the respondents’ motion for summary judgment dismissing the complaint insofar as asserted against them.” See: Mancuso v. Friscia, et al., 2013 NY Slip Op 05515.