Epiluminescent microscopy, nevi and a Lawsuit

July 1, 2005

The other issue evaluated by the court was whether the mass observed by the defendant physician was even the same mass that ultimately became ancerous.

Jane, at age 32, had no personal or family history of melanoma.

Following doctor's orders During a five-year time period ending in 1998, she underwent such evaluations on a regular basis with Dr. R. No lesions were seen to be remarkably unusual after each examination. Thereafter, she did not return for a skin evaluation for 18 months. Subsequently, she did not feel well and returned to her family physician.

Will she win?This may be the source of the primary melanoma even though visually the lesion is less unusual than many other pigmented lesions on her skin.

She has now been told by another physician that this is a more exact technique for picking up early melanoma than simple observation of lesions. She feels Dr. R was negligent in not showing better judgment and sending her to another physician for pigmented lesion evaluation with epiluminescent microscopic evaluation, and she sues him. Will she win a multi-million dollar judgment against Dr. R?

Precedent The First Circuit Court has looked at a similar "failure to order additional test" medical malpractice case.

In that case, Sharon Primus saw a number of physicians regarding a cyst in her breast. She was diagnosed as having fibrocystic disease. Over the course of several years, numerous physicians evaluated her breasts and found nothing amiss. Ultimately, she was noted to have breast cancer, metastatic disease and required radical mastectomy of her right breast. She sued the last physician who had diagnosed her with fibrocystic disease. She contended that the physician should have been more aggressive with his testing, including undertaking numerous targeted ultrasound procedures and fine needle aspirations.

The First Circuit Court, in analyzing plaintiff Primus' case, looked at both the issues of causation and the reasonable standard of care. The court noted that to prove negligence, the plaintiff needed to show a deviation from the standard of care and that the deviation was the proximate cause of her injury. Plaintiff Primus argued that her physician should have pursued further tests such as targeted ultrasound and fine needle aspiration. The court ruled that such tests were not sufficiently effective at the time of the alleged negligence (1990) to be considered part of reasonable care.

Various experts also testified that the mass was so small that these tests would not have detected the problem. Ms. Primus also argued that the court should consider the history of growth in the mass, which required her physician to order additional tests.

However the court ruled that the physician, in fact, had ordered another mammogram and a follow-up appointment, but Ms. Primus did not return for either the examination or test. Thus, the court ruled that the defendant physician did not deviate from the reasonable standard of care.

Same mass? The other issue evaluated by the court was whether the mass observed by the defendant physician was even the same mass that ultimately became cancerous.

The court noted that there was conflicting evidence, which both parties presented. The court suggested that no physician expert could be certain the malignant mass was even the mass observed by the defendant physician.

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