By Alex Stein
During an annual mammogram screening for breast cancer, the radiologist detects a nodule in the patient’s breast. The nodule is large enough to require a biopsy, but the radiologist prefers to schedule a follow-up appointment with the patient for six months later. This appointment reveals that the nodule had grown and the radiologist refers the patient to a biopsy. The biopsy is carried out four days later by a surgeon. The surgeon determines that the nodule was malignant and diagnoses the patient with breast cancer. The patient consults two breast cancer specialists who unanimously recommend mastectomy and chemotherapy. These procedures and the ancillary treatments prove successful. They make the patient cancer free in one year. The chemotherapy caused the patient to experience hair loss, pain, nausea, headaches and fatigue, but all these symptoms are now gone as well.
The patient is happy with the result but is still upset. She believes that a timely discovery of her cancer would have given her a far less painful and less disfiguring treatment option: lumpectomy followed by radiation therapy.
Can the patient successfully sue the negligent radiologist?
Unfortunately, she cannot. The patient cannot prove that the delay in biopsy caused her any harm or even increased her chances to develop a more severe form of cancer. There is no way to go back in time and evaluate the pathology of the nodule that appeared on the mammogram at the patient’s initial screening. Nor is it possible to tell whether an immediate biopsy would have shown that the nodule was malignant. Medical experts therefore cannot support the plaintiff’s causation claim to a reasonable degree of medical probability. Any support they can give to that claim would be nothing but speculative. For that reason, the plaintiff’s suit is doomed to fail even in the states that relax the causation requirements for patients who endured medical malpractice. The most recent statement of this “law of breast cancer” came two weeks ago from Delaware’s Supreme Court in Mammarella v. Evantash — A.3d —-, 2014 WL 1945621 (Del. 2014).
This law isn’t good: it creates a safe harbor for negligent radiologists while shifting the consequences of uncertainty to the wronged patient. For that reason, it was rejected by Israeli courts. These courts follow the “evidential damage” doctrine developed by Ariel Porat and myself in Tort Liability Under Uncertainty (Oxford University Press, 2001) and other writings. Under this doctrine, the radiologist should bear the legal consequences of the uncertain pathology because he created it by his negligence. This negligence denied the patient the much-needed information about the nodule in her breast. For that reason, the court must shift the burden of proof to the radiologist. The radiologist should pay for the patient’s damage unless he proves that his negligence caused no harm to the patient.
In a case involving roughly similar facts, the Jerusalem District Court held that the aggrieved patient was entitled to a presumption that her cancer had grown as fast as in the worst scenario reported by medical experts. Based on this presumption, the court calculated the tumor’s size backwards and estimated that it was small enough to give the patient an excellent chance to recover from her breast cancer, given proper treatment. C.A. 733/91, Sharvit v. Shaarey Zedek Hospital.
American courts should adopt the same approach. All they need to do in order to fix the bad law of breast cancer is expand the “spoliation of evidence” doctrine. Patients should not suffer from the loss of information resulting from their doctors’ negligence.