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Medical Malpractice from Incorrect Diagnosis

When an Incorrect Cancer Diagnosis Leads to Unnecessary Surgery, Who is Responsible?

Laurence M. Deutsch and Steven E. North

The New York Post (6/19/17) recently reported a case of horrific malpractice: a woman having a mastectomy for supposed breast cancer who did not in fact have cancer.

The woman who was in her 40s, was misdiagnosed as having breast cancer because the pathologist to whom her biopsy sample was sent misread it. (Pathology is a medical specialty devoted to reading slides of such samples, in which differentiating cancer from non-cancer is a major component).

The woman went to Lenox Hill Hospital for a surgical opinion. Supposedly a policy in place mandated that the hospital do its own reading of any biopsy material before performing surgery. One purpose of such a policy is to make sure, before subjecting a patient to drastic surgery, that the diagnosis is correct.

A policy to review “outside” pathology readings is also in place at a number of other institutions, notably the Memorial Sloan Kettering Cancer Center. Patients often choose specialized, high-profile cancer centers such as Memorial Sloan Kettering in part because of its reputation for having its own team of pathologists pore over biopsy samples to be sure any cancers are correctly identified.

Despite its own such policy, the Lenox Hill Hospital surgeon apparently went ahead and performed a mastectomy on this woman's based solely upon the original, outside pathology reading. In fact the surgeon signed a "certification" attesting to the fact that he had checked the in-house, Lenox Hill Hospital pathology before proceeding to surgery.

Apparently, the Lenox Hill surgeon treated this certification purely as a matter of routine and paid little attention to what he was signing. After the surgery, the removed breast was sent for further analysis in the Lenox Hill pathology department, where it was discovered that the breast contained no cancer. Hence, the litigation that resulted.

Although this scenario seems riddled with malpractice, it is not necessarily obvious who is responsible.

Clearly, the original pathologist is the primary culprit for misinterpreting the biopsy. The hospital’s position, however, is not so clear. Although Lenox Hill apparently has a policy of doing its own, independent reading of any samples coming in from outside institutions, this is not the universal standard for hospitals. Ultimately, the legal standard for what is or is not medical malpractice is whether a physician or hospital comports with "generally accepted standards of care" (NY Pattern Jury Instructions sec. 2:150).

Therefore, Lenox Hill may have an argument that, even if it violated its own policy to conduct an independent pathology review, such a policy may in fact have exceeded the required standard of care for hospitals. If this argument is accepted by a court or jury, the plaintiff may prevail against the pathologist, and possibly the surgeon, though not necessarily against the hospital.

Such a case may ultimately create legal issues for appeal, and there are doubtless many facts yet to be developed. But this situation illustrates the general point that there are some situations in which the ethics or morality of a situation does not necessarily dovetail with the legal categories of malpractice in a manner that would allow recovery in a civil suit. One of the functions of experienced medical malpractice counsel is not only to determine whether there was malpractice but also to direct the case against the parties who ultimately will be most culpable as a matter of law.

While no financial compensation can truly make this woman whole, we hope that the financial sanction against those responsible will serve as a deterrent against this type of action in the future. A person’s life and health is too important for a rushed pathology reading. And if a hospital thinks it’s important enough to check pathology twice before surgery to create a policy on the matter, then perhaps a surgeon shouldn’t just “sign off” when that second pathology check did not occur.