Breast Cancer Cases

Causation

In determining whether a breast cancer misdiagnosis case has merit, investigation is required into both standard of care and causation issues. Pennsylvania has adopted the increased risk of harm approach to causation, meaning that a physician may be held accountable if his or her negligence increased the risk of harm to his or her patient. Stated otherwise, if there had been any significant possibility of avoiding injury, and the physician destroyed that possibility through his or her negligence, then the physician is liable to his or her patient.⁴

Although learning that you have breast cancer can be devastating, the good news is that in many instances, breast cancer is curable, particularly if it is caught in its early stages before it spreads to distant parts of the body. Women are living longer with breast cancer than ever before, and at this time, more than 2 million women are survivors.

Women who have been diagnosed with breast cancer undergo testing to determine the stage and other characteristics of their disease. This testing includes examination of surgically removed breast tissue under the microscope, blood tests, and imaging. From these tests, the clinical oncologist can obtain the following information which is useful in determining the patient’s prognosis and treatment options:

• The size of the tumor;
  
  
• Its location;
  
  
• Whether the abnormal cells are “in situ” or confined to the ducts which carry breast milk or to the milk producing glands of the breast, or invasive;
  
  
• Tumor grade (i.e. aggressive or fast growing versus slow growing);
  
  
• Whether the tumor extends to the chest wall muscle or skin;
  
  
• The absence or presence of certain proteins expressed within the tumor including hormone receptors or HER2;
  
  
• Whether the cancer has spread to lymph nodes under the arm or near the breast bone and the number of nodes involved;
  
  
• The absence or presence of cancer in distant parts of the body, including the lungs, brain, or bone.

A staging system is a uniform or standardized method to summarize information about how far the cancer has spread.  The most frequently used system to classify the stages of breast cancer is the TNM system published by the American Joint Committee on Cancer.

The initials T, N, and M are abbreviations which represent the following:

• T stands for tumor;
  
  
• N stands for lymph nodes; and
  
  
• M is for metastasis (spread to distant organ).

Additional numbers or letters appear after T, N, and M, and give more detail regarding the extent of the cancer including the size of the tumor and the number of lymph nodes involved. The stages of cancer range from 0 (noninvasive carcinoma or carcinoma in situ) to stage IV (metastatic cancer).

Five (5) year survival statistics are available by stage. The five (5) year survival rate refers to the percentage of patients who live at least five (5) years after having been diagnosed with cancer. The data base for these statistics is derived from the National Cancer Institute & Surveillance, Epidemiology and End Results (SEER) study based upon women who were diagnosed with breast cancer between 1988 and 2001. Although these statistics are among the most current numbers available, advances in treating certain types of breast cancer since then may mean that the survival rates for certain classes of patients may be higher. While survival statistics are a useful guide, other factors affecting one’s prognosis may also come into play such as age and general health. If you have been diagnosed with breast cancer, and have read about survival rates, you should ask your oncologist how these statistics apply to you before drawing any conclusions.

The advantages of early diagnosis and treatment are apparent when one compares the relative five (5) year survival rates for women with breast cancer at various stages as described below:

 

 

Despite scientific evidence proving the beneficial effects of prompt diagnosis and treatment on prognosis, many defendants in breast cancer misdiagnosis cases, particularly when the breach in the standard of care is clear, assert that the delay in question did not harm the plaintiff. The “tumor doubling” defense is one such tactic used in an attempt to avoid responsibility. A critical analysis examining this defense and exploring its fallacies is set forth under the heading " Understanding the Tumor Doubling Defense." The same principles refuting this defense apply to breast, cervical, and other cancer misdiagnosis cases.

⁴ See Pennsylvania Suggested Jury Instruction 11.02.