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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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Radiology and Failure to Diagnose Cancer

Breast Cancer, Lung Cancer, Failure to Appreciate Imaging

Failure to diagnose cancer from x-ray is a common problem. It gives rise to stunning results, costs lives, increases medical care costs, and it devastates families.

At Domina Law Group pc llo, our experience with radiology malpractice includes:

  • Radiology malpractice – failure to diagnose breast cancer;
  • Radiology malpractice – failure to follow cysts and signs in breast screening x rays from a baseline year, and from year to year;
  • Failure to refer the patient;
  • Failure to identify the need for additional testing;
  • Failure to diagnose lung cancer;
  • Failure to identify suspicious lesions, images or masses for further study, resulting in delayed lung cancer and breast cancer diagnosis.

What does the recent study disclose?

Professional negligence in radiology often includes:

  • The failure to read the entire x-ray, with excessive focus on a suspect area, and simply overlooking other significant medical evidence;
  • Failure to require prompt mammography upon presentation of a breast lump;
  • Failure to prevent metastasis of cancers sufficiently localized to permit surgical removal if prompt findings are made;
  • Lung cancer metastasis from solid mass that is surgically removable to distant tissues and fluids of lungs, or distant organs.

The medical journal Radiology published a story in early 2013 about medical malpractice mistakes by radiologists, who are trained to read diagnostic tests, principally in the form of imaging, to diagnose and recommend treatment and care for patients. Baker, Stephen et al., The Demography of Medical Malpractice Suits Against Radiologists, Radiology, 266:539-547 (February 2013) (online 11-28-12). Whang, Jeremy et al. The Cause of Medical Malpractice Suits Against Radiologists in the United States, Radiology, 266:548-554 (February 2013) (online 11-30-12).

The recently-released Whang study found the most common general cause was error in diagnosis (14.83 claims/1,000 person years). In this category, breast cancer was most commonly missed (3.5 claims/1,000 person years) followed by:

  • Non-spinal fractures – 2.9 claims/1,000;
  • Spinal fractures – 1.32 claims/1,000;
  • Lung cancer – 1.26 claims/1,000;
  • Vascular disease – 1.08 claims/1,000.

Procedure complications accounted for 1.76 claims/1,000. Inadequate patient communication was the cause of 0.4 claims/1,000 person years.

The Whang study concluded that “errors in diagnosis are, by far, the most common generic cause of malpractice suits against radiologists. In this category, breast cancer was the most frequently missed diagnosis followed by non-vertebral fractures and spinal fractures.”

Undiagnosed breast cancer and mistakes with mammograms were the most common problem. Radiologists reviewing mammography failed to (a) follow up on previous or baseline studies, (b) compare suspicious lesions or cysts from one test to the next to ascertain the presence or absence of changes, and failure to order follow-up evaluative studies to confirm, or rule out, a breast cancer diagnosis.

The HIPAA-compliant study was institutional review board approved. All radiologists enrolled in the study were One-Call Medical providers. For each radiologist a record of unfavorable outcomes and payment awards was derived from narratives in the National Practitioners’ Data Bank. All other matters were self-reported. Rates of malpractice claims per state were calculated.

The results were as follows: in August 2010, 8,401 radiologists from forty-seven (47) states composed One-Call Medical’s Panel. During their careers, 30.9% (2,600 of 8,401) were sued at least once for malpractice. There was a wide variation in awards from Maine ($350,000) to Colorado ($24,105), while mean payments varied nine-fold from Oregon ($715,707) to Nebraska ($74,373).

The study concluded that the likelihood of a radiologist being a defendant in at least one suit is 50% by age sixty (60), yet the difference in frequency and average number of suits accrued varies widely by state of residence and gender. Among resolved suits, the percentage of cases in which payment was made to the plaintiff differed markedly and varied intensively, apparently based upon the degree of sophistication with which the patient and the patient’s lawyer approached the case.

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