In any given year at least a couple of thousand people contact us about possible FTCA medical malpractice cases. Only a very small number are viable ones, so we obviously turn down many potential clients. At times, it is a heartbreaking decision because the injuries are devastating, but if there is not enough evidence to support a claim, there is just not much we can do. However, a recent case reminded us that at times our decision to decline a case can be a mistake.
A military spouse came to us with a potential case relating to the diagnosis and treatment of breast cancer at an Army hospital. Obviously, such a diagnosis is overwhelming for any patient, but the good news for her was that her tumor was small at the time of her diagnosis, meaning her prognosis was good. Because of the size of the tumor and the fact it was close to the skin, she was an excellent candidate for breast conservation therapy, also known as a lumpectomy.
The surgery didn’t go well. Basically, the Army surgeon got lost in the anatomy. Even though the tumor was right under the skin and her breasts were small, the surgeon took out a significant amount of tissue – but never removed the cancerous area.
About a month after the surgery – and after not getting much good information from her military healthcare providers – the client sought a second opinion from an outside surgeon. It’s a good thing she did. The Army had misread the pathology and incorrectly diagnosed the type of breast cancer she had. The attempted lumpectomy had not removed the cancer.
The client got the treatment she needed. Unfortunately, because so much healthy tissue had been removed in original surgery, a lumpectomy was no longer a viable option. The client required a mastectomy. Her entire breast was removed.
Fortunately, the relatively short delay didn’t impact our client’s cancer treatment or her prognosis, but even with a breast implant the cosmetic impact was obviously significant. She was also left with problems commonly associated with mastectomy, including arm and chest pain. All of this could have been avoided had the original surgery been performed properly.
We filed a claim with the Army. The six-month period ran and there was no effort on the part of the Army to settle the case. This didn’t surprise us, so we filed suit. The case went through the whole discovery period before we got it settled for $387,500.
Here is the upshot as I alluded to above: We initially rejected the case. We looked at the matter simply as a delayed diagnosis claim which is the typical cancer case scenario. While it was clear that the Army’s medical care was confused and inappropriate, the total delay was just not long enough to say that her cancer prognosis was changed. We didn’t think there was a viable case so we sent the usual letters and closed our file.
The client called a few days later. She explained that she understood about the cancer prognosis, but the real issue was that she could have avoided a mastectomy. What she said made sense, so we agreed to re-review the matter. Fortunately, the private doctor was willing to talk with us. She confirmed exactly what the client had told us. The Army surgeon had botched the original lumpectomy by removing far too much healthy tissue. There was no option left except to remove the entire breast. We took the case and filed a claim.
There are two great lawyer “teaching points” in all of this:
Always think broadly. We look at lots of cancer cases. The issue is almost always the delay. It has to be long enough such that the cancer has progressed to a different stage, meaning the cancer was more difficult to treat and/or the diagnosis was impaired. In that regard we called this case correctly, but we plainly didn’t appreciate the other problematic aspects of the care. To put it in modern “biz speak” terms, we didn’t “think outside the box.”
Always listen to the client. I will admit that when I was called after we closed the file, I was dubious. A fair number of people contact us after we reject their case. I’m used to dealing with such contacts – and letting them down gently. However, in this instance what the client said made sense, so mostly as a courtesy I agreed to take another look. Obviously, I am glad I did. Sometimes our “legal expertise” can color our perception.
Luckily, in the end that didn’t happen here, but looking back it is not hard to see that it easily could have. As lawyers we should always be reminding ourselves to be careful about our assumptions and the potential for misperceptions. We get it wrong sometimes. We will not always be lucky enough to have a client who provides that prodding.
In the end, we got a good settlement for the client. She was satisfied with the outcome and appreciative of our efforts. But I also have to remember that it almost didn’t happen. In addition to the fee we earned, we learned something very important from this case – and that matters a lot.