Mr P’s devastated widow sought the counsel of a plaintiff’s attorney. “If that first practitioner had only taken my husband’s mole seriously, maybe he would be alive today,” she said tearfully. The attorney took on the case and filed a wrongful death lawsuit against Mr N and his practice, alleging that Mr N’s failure to biopsy the suspicious mole resulted in a delayed diagnosis of malignant melanoma causing the patient’s death.

Mr N and his practice were informed of the lawsuit and met with their own defense attorney provided by their medical malpractice insurance.


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Over the next several months, the plaintiff’s attorney retained several experts who were prepared to testify that the standard of care required a biopsy or referral to a surgeon for evaluation of any atypical lesion and that recommending a 6-month wait was substandard and allowed the lesion to progress and continue its downward growth, thereby negatively affecting the patient’s prognosis and chance of a cure.

Meanwhile, the defense attorney’s experts were preparing to testify that it was within the accepted standard of care to watch a lesion for 6 months to see if the appearance changed, since it did not have the appearance of a melanoma when it was first examined. The defense experts were also prepared to testify that the melanoma had already metastasized at the time that Mr N examined the patient and that a diagnosis at that time would not have changed the unfortunate outcome.

A month prior to trial, the case settled out of court for $1 million.

Legal background

It may seem odd that the defense experts were preparing two defenses that almost seemed contradictory, but it is quite common. The defense’s argument here was 1) we did not do anything wrong (because it was within the standard of care to monitor this mole for 6 months since it did not appear to be melanoma), and 2) even assuming we should have sent the patient for a biopsy when he first came into the office, that would not have changed the final outcome because the melanoma had already metastasized by then and an earlier diagnosis would not have made a difference.

Frequently, defense attorneys offer multiple defenses, which in some cases may seem to conflict—as in “We didn’t do anything wrong, but even if we did, it wouldn’t have changed the outcome.” The reason is that without the element of causation—showing that an act or omission by the healthcare provider resulted in the bad outcome for the patient—a medical malpractice case will fail. So defense attorneys often will add the defense of “it was already too late,” as they intended to do in this case.

Protecting yourself

If a patient self-reports a mole that has changed appearance, it is wise to refer the patient for a biopsy or to a surgeon or dermatologist for further workup. Assuming that, because a patient is young and healthy, it is unlikely to be melanoma is a very dangerous and mistaken assumption. According to the National Cancer Institute, approximately 2.1% of men and women will be diagnosed with melanoma at some time in their lifetime. In 2016, there were more than 76,000 new cases of melanoma reported. Melanoma is more common in white men than any other group. While localized melanoma is very treatable and has a high survival rate, once it has metastasized to other areas of the body, the survival rate drops dramatically. Having a skin lesion examined early offers the best chance of avoiding a bad outcome, for your patient and yourself.

Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, NY.