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Mammography is without doubt the most important diagnostic tool in detecting early-stage breast cancer. Studies have repeatedly shown a decrease in mortality rates among women who are screened for the disease at intervals of at least every two years. Some studies show the decrease to be as high as 50%.

Yet some U.S. physicians are growing reluctant to order these life-saving tests, and many radiologists do not wish to specialize in reading them. One-third of practicing radiologist have considered leaving the specialty. This phenomenon is often attributable to fear of medical malpractice suits, which have become common in “failure to diagnose” breast cancer cases.

Medical Malpractice Lawsuits and Breast Cancer

In general, a prima facie case of medical malpractice may be established if the following elements are present:

• a duty of care to the patient
• breach of that duty
• causation, both “in fact” and proximate
• damages (compensation for either economic losses and/or non-economic harm)

Proximate causation involves an analysis of whether or not a doctor’s failure to detect a tumor is sufficiently related to the harm suffered by the plaintiff; or whether some superseding, independent cause that results in unforeseeable consequences is actually to blame.

If the doctrine of res ipsa loquitur (“the thing speaks for itself”) is available, negligence may be inferred even in the absence of direct evidence thereof.

Plaintiffs often seek monetary damages for “loss of chance,” which represents their possibly decreased rate of cancer survival because of the failure to detect. This theory has developed somewhat differently in various state courts, but the burden of proof is always on the plaintiff.

Negligent infliction of emotional distress constitutes another type of claim, which does not require actual physical harm to be suffered by the plaintiff. Rather, it is based on the intense psychological trauma caused by fear of breast cancer.

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