Ms. W and Dr. B were notified about the lawsuit and spoke to their own defense attorney. After being questioned and looking at the patient’s record, both practitioners realized that they had neglected to convey to the patient the recommendation by the radiologist. The attorney interrupted them as they tried to explain how many patients they had and how busy they were.


“That won’t be a viable defense,” said the attorney. Instead, he suggested that their only recourse was to attack the expert’s report and question whether a delay of a year and a half would have made a difference in the patient’s ultimate prognosis.



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At trial, this argument did not fare well. The plaintiff’s experts were able to convince the jury that the delay in diagnosis had drastically shortened the plaintiff’s life. Neither Dr. B nor Ms. W took the stand. The jury ultimately found in favor of the plaintiff and awarded her and her family $3.8 million. 


Legal background


The plaintiff’s attorney correctly told Ms. W and her supervisor that saying they were very busy or had a lot of patients would not be an adequate defense, particularly because they had referred the patient for the mammography and had the copy of the report in her file.

Most malpractice cases are either misdiagnosis, in which a clinician makes a wrong diagnosis, or delayed diagnosis, in which a clinician fails to diagnose something that should have been noticeable, leading to a delay in the patient getting diagnosed and treated. In both cases, the delayed or missed diagnosis must have resulted in harm to the patient. Without harm (also called injury), there is no case.

In this particular case, the plaintiff’s experts were able to conclusively establish that the delay in diagnosis had resulted in a far poorer prognosis for Mrs. K, whose life-span would now be shorter because of it. With that information and no good reason for the clinicians not notifying the patient about her results, the jury, naturally, found them liable.