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Chicago Breast Cancer Medical Malpractice Attorneys

Breast Cancer Malpractice

Although breast cancer can affect both men and women, it affects women predominantly and is the leading cause of death in women. Each year, nearly 250,000 women (about 1 in 8) are diagnosed with such a cancer. About 15% of those diagnosed will eventually lose their lives as a result. Tragically, medical malpractice plays a role in many of these cases. Malpractice occurs when a patient’s wellbeing is put at risk through misdiagnosis, erroneous treatment, or other medical negligence. If you believe you were affected by malpractice, call Mitchell S. Sexner & Associates LLC for a free consultation.

What is Breast Cancer?

In a healthy body, the growth and death of cells are under control and regulated. But when any cells (or in this case, breast tissue cells) fail to die off at the normal rate, the uncontrolled division and growth of these cells outpaces the death of such cells and usually forms a mass that grows underneath the breast tissue. If these out-of-control cells attack healthy cells or metastasize (spread), the tumor is considered malignant and is identified as breast cancer. Most breast lumps are not cancerous. These benign breast tumors are still abnormal growths, and while they may increase the risk of later getting breast cancer, they are not life-threatening and will not spread further outside the breast.

Types of Breast Cancer

Sarcomas and lymphomas are cancers that may affect the breast, but are not technically considered breast cancers as they originate in other tissues. Most cancers of the breast are called ductal cancers and originate in the ducts that carry milk to nipples, while others start in the glands that create breast milk. Some of the types of breast cancer include:

  • Invasive ductal carcinoma (IDC) – also known as infiltrating ductal carcinoma, this is the most common type of breast cancer that begins inside the milk duct of the breast and then spreads to other healthy tissue. Types of IDCs include tubal carcinoma, medullary carcinoma, papillary carcinoma, mucinous carcinoma and cribriform carcinoma.
  • Invasive lobular carcinoma (ILC) – also known as infiltrating lobular carcinoma, it is the second most common breast cancer and is a cancer that breaks through the wall of the lobule and starts to invade other breast tissues.
  • Ductal carcinoma in situ (DCIS) – abnormal cells that grow in the milk ducts, but do not spread to other tissues; “in situ” meaning “in place.”
  • Inflammatory breast cancer (IBC) – an aggressive and rare breast cancer that typically begins with swelling and reddening of the breast rather than a palpable lump.
  • Paget’s disease of the nipple – a rare form of breast cancer in which cancer cells are located at and around the nipple.
  • Phyllodes tumors of the breast – also known as phylloides tumors of cystosarcoma phyllodes, this rare cancer has cells that resemble a leaf shaped pattern.
  • Recurrent and metastatic breast cancer – recurrent cancer refers to cancer that comes back in the opposite or same chest or breast wall after a period of time when the cancer could not be detected. Metastatic cancer refers to a cancer that spreads to other parts of the body. Both are considered to be cancers of an advanced stage.

In some circumstances, non-cancerous cells may be warning signs that a person is at risk of developing breast cancer. For example, lobular carcinoma in situ refers to abnormal cells that grow in the milk-producing glands but do not spread to other tissues. Though these are not cancerous, they indicate an enhanced risk of developing breast cancer in the future and must be carefully monitored.

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Risk Factors for Breast Cancer

Medical science has identified many risk factors that seem to increase the likelihood of a woman developing breast cancer. Some cannot be changed, while others can be affected through diet and lifestyle changes. But for every woman who exhibits multiple risk factors and never gets breast cancer, there are many other women with no known risk factors who do in fact develop cancer. Some of the risk factors include:

  • Age – the older a woman gets, the higher her risk of developing breast cancer. Risk increases in women age 55 and older.
  • Gender – although men can develop breast cancer as well, women are 100 times more likely, probably because men have less progesterone and estrogen, which may promote cancerous breast cell growth.
  • Family history – although 80% of women who develop breast cancer do not have a family history of breast cancer, women are at greater risk if they have close blood relatives with breast cancer including a brother or a father.
  • Prior personal history – women who have previously had breast cancer are at greater risk to develop a new cancer either in the same or opposite breast.
  • Dense breast tissue – when a woman has more fibrous and glandular tissue compared to fatty tissue, the breast is considered to be “dense”. Risks increase for developing breast cancer and mammogram accuracy declines as well.
  • Ethnicity and race – in women under the age of 45, African-American women are at greater risk, as well as being at a greater risk of dying across all age groups; however, Caucasian women are a little more likely to develop breast cancer generally. Hispanic, Native American and Asian are generally at a lower risk.
  • Inherited genes – certain inherited gene mutations place a women at greater risk for developing breast cancer. The most common inherited genes that contribute to cancer are known as BRCA1 and BRCA2, but these other mutated genes may also contribute: PALB2, ATM, STK11, TP53, PTEN, CDH1, CHEK2.
  • Menstruation onset – women who started menstruating before age 12 have a higher risk of developing breast cancer.
  • Radiation - women who underwent radiation therapy for another cancer type, especially women who have chest radiation while their breasts were developing in adolescence, have a much higher risk.
  • Menopause onset – women who go through menopause after the age of 55 have a higher risk of developing breast cancer.
  • Benign breast conditions – a higher risk of developing breast cancer exists for women who have certain benign (non-cancerous) breast conditions such as duct ectasia, mild hyperplasia, fibrosis, sclerosing adenosis, fat necrosis, periductal fibrosis, apocrine and squamous metaplasia, lipoma, hemangioma, hamartoma, mastitis, fibroadenoma, and others.
  • DES exposure – from the 40’s through the 70’s, a drug called diethylstilbestrol was given to some women to decrease chances of miscarriage.
  • Obesity – risk increases for women who gain weight as an adult, rather than women who have been overweight since childhood.
  • Alcohol consumption – higher daily consumption of alcohol increases the risk for breast and other cancers as well.
  • Children – women who had their first child after the age of 30 and women without children have a higher risk for breast cancer.
  • Physical activity – women who do not take part in vigorous intensive activity on a weekly basis are at a greater risk.
  • Birth control – women who take oral contraceptives are at a higher risk, although once the birth control is stopped, risk seems to reduce again.
  • Hormone replacement therapy – women who take part in menopausal hormone therapy (MHT), also known as post-menopausal hormone therapy (PHT) or hormone replacement therapy (HRT) to prevent osteoporosis and reduce menopause symptoms, are at greater risk.

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Breast Cancer Symptoms and Diagnosis

Doctors generally recommend a yearly breast cancer screening for women in the interest of early cancer detection. Depending upon risk factors, a doctor may also suggest screenings more often. It is also strongly recommended that women perform regular self-examinations. This is because the early detection and diagnosis of breast cancer is one of the absolute keys to successful treatment of the disease. The most common symptoms are as follows and, if present, should be immediately discussed with a doctor:

  • Nipple or breast pain
  • Swelling of any part of breast
  • Puckering or dimpling of breast skin
  • Skin irritation
  • Change in breast size
  • Thickening inside the underarm
  • Nipple discharge
  • Scaly, itchy, sore, or red area
  • Thickening of the breast skin or nipple
  • Pain in one spot that does not disappear
  • Nipple retraction (turning in)
  • Lump in breast, whether hard, soft, defined or irregularly shaped
  • Swollen lymph nodes

Women who diagnose their cancer in the earliest stage (Stage 1) have a 90% or greater survival rate after 5 years. But the more advanced the stage of breast cancer, the lower the survival rates become, with Stage 2 lower, Stage 3 lower still, and Stage 4 with approximately a 25% survival rate according to some studies. As a result, it is critical that doctors take appropriate steps to test and diagnose cancer. The most common breast cancer tests include:

  • Mammogram – A mammogram is an x-ray of the breast. Although some radiation exposure occurs, most believe that the potential benefits outweigh any risks. Mammography is primarily used for early detection of breast cancer (a periodic “screening mammogram” looking for changes over time). A diagnostic mammogram may be used to investigate a particular symptom, finding or lump.
  • Breast MRI – Magnetic Resonance Imaging (MRI) uses radio waves and magnetic fields, which are then translated by a computer into a detailed image of the breast. Unlike a mammogram, a breast MRI is more invasive, requiring the injection of a contrast liquid called gadolinium. Because the MRI is more invasive, more expensive, has more false positives, and requires a specially trained radiologist to read, it is not typically prescribed for women with an average breast cancer risk.
  • Breast Ultrasound – Also known as sonography, an ultrasound is not generally used as a screening test, although it is sometimes suggested as an alternative to an MRI. This test can help determine if a mass is solid or fluid filled, as solid masses are generally more suspect.
  • Ductogram – Usually used to help determine the cause of nipple discharge, a small metal tube is placed in the nipple opening and some contrast liquid is placed within. This contrast material then outlines the duct shape on an x-ray to determine if a mass resides inside of the duct.
  • 3D mammography – Also known as digital tomosynthesis, digital breast tomosynthesis, or breast tomosynthesis, this test creates a 3D picture of the breast from several different 2D mammograms taken at different angles. This is often used in conjunction with regular mammography. Though test appears to reduce false positives, it is not available at all hospitals and is still being studied to determine effectiveness.
  • Breast Biopsy – When a mammogram or other test displays a change in the breast that may be cancerous, a biopsy is the best method to make an accurate determination. A needle biopsy involves removing a tiny sample of the mass for lab analysis. This helps prevent unnecessary chemotherapy or radiation treatment. In the interest of avoiding unnecessary treatment, sometimes a repeat biopsy is the best course of action.

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Identifying Medical Malpractice and Misdiagnosis

Though a doctor is not to blame for the existence of cancer, they may be held responsible for a proper evaluation. As a result, medical malpractice usually occurs when the doctor or radiologist fails to properly diagnose the disease despite indications that should otherwise lead them to suspect cancer. Unfortunately, misdiagnoses often occur, especially at early stages. A recent study, published in the Journal of the American Medical Associates (JAMA), indicated that:

  • Precancerous, abnormal cells were correctly diagnosed by pathologists only about 50% of the time
  • About 33% of abnormal cells were diagnosed as normal or not worrisome
  • About 17% of such precancerous cells were diagnosed as being cancerous and more serious than in reality
  • About 13% of “ductal carcinoma in situ” were misdiagnosed as less serious, while about 3% were diagnosed as being cancerous and more serious than in reality

Misdiagnosis of any medical issue, especially cancer, is a serious problem and can be grounds for a malpractice claim or lawsuit. If you believe your doctor negligently handled treatment or diagnosis of breast cancer, a medical malpractice attorney can review your medical records to determine your legal rights. Common types of malpractice that can impact a breast cancer patient include:

Failure to Properly Evaluate Symptoms

When a woman presents potential breast cancer symptoms to her doctor, it is vital that the doctor take time to carefully evaluate the patient’s concerns. In many medical practices today, the doctors see a very high volume of patients in rapid succession and may spend little time really listening to the patient. Many times, a nurse or other medical staff member will conduct the initial examination and then hand off the information to the doctor. Information may be lost in the hand off, misinterpreted, or the doctor simply may not be a good listener. When any of these circumstances are present, there is the potential for early warning signs to be missed and for malpractice to occur.

Failure to Obtain a Full Medical History

It is vital for the doctor to know as much as possible about the patient’s personal medical history as well as the medical history of her blood relatives. Should they find that the patent has enhanced risk factors for developing cancer, the doctor must take these factors into consideration, along with any symptoms, in order to properly evaluate the patient. Failure to do so would constitute medical negligence.

Failure to Screen for Cancer

Breast cancer is such a real and present danger to all women that failure to recommend a breast screening may, in and of itself, be considered negligent. This is especially true if the woman is older, has a cancerous family history, or has other risk factors that increase the likelihood for cancer. There is no excuse for a doctor who fails to suggest diagnostic testing in such cases.

Misdiagnosis of Mammogram or Other Diagnostic Test

The interpretation of mammograms, MRIs, CT scans, and ultrasounds is best left to radiologists, as they have received specialized training in the interpretation of these diagnostic images. Sometimes, a doctor will attempt to interpret such images without the aid of a radiologist, resulting in a negligent misinterpretation of the scans. More commonly however, the images may be misdiagnosed by the radiologist. Whether this is due to incompetence, overwork, or otherwise, failure to promptly detect and treat breast cancer is an opportunity for cancer to take hold and spread. When this happens and the breast cancer is diagnosed late, not diagnosed at all, or misdiagnosed as another condition, radiological malpractice has occurred. This is, by far, the most common reason that patients sue doctors and radiologists in regards to breast cancer.

Failure to Follow Up with Patient Regarding Test Results

When a radiologist or doctor has properly interpreted diagnostic tests and found signs of cancer, they are responsible to promptly inform the patient of the results. Failure to do so is likely medical malpractice because the patient must be allowed to make quick, smart, and knowledgeable decisions about their own future course of treatment. Every minute counts.

Failure to Provide Appropriate Recommendations

If a diagnostic test appears abnormal, the radiologist must make prompt and appropriate recommendations, rather than allowing the cancer to advance to a higher stage. Follow-up suggestions may include biopsy, spot views, re-testing, magnification, breast ultrasound, or other diagnostic testing. A failure to suggest timely follow up procedures will likely constitute medical malpractice.

Failure to Follow Up with Referring Doctor

Often, diagnostic tests are performed at another medical facility or sent to a radiologist for interpretation. But after the scans have been interpreted, the referring doctor must be immediately notified of the results so he or she can take immediate action to prepare a treatment plan. If the results are not promptly communicated, the referring doctor may just assume that the radiologist has not yet viewed the images or may not remember to re-contact the radiologist as time passes. In either event, the cancer may progress into a higher stage which may make treatment more difficult, more painful or less viable.

Negligent Breast Cancer Treatment

Assuming that breast cancer has been identified and a treatment plan has been establish, medical malpractice may still occur in the implementation of that plan. Both chemotherapy and radiation therapy are highly toxic and dangerous even when used properly, but if used in the wrong combination or at doses which are too high, they may be counter-productive, cause even greater injury or in some cases, may be deadly as well. Excessive radiation may also cause burns or lead to the development of other cancers over time. In any event, when a doctor’s treatment plan results in greater injury or fails to properly treat the breast cancer, medical malpractice has likely occurred.

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Get Information About Your Breast Cancer Case

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