Can we sue a lab that gave the wrong test result, saying it was noncancerous when in fact it was cancer?

Medical Malpractice 4 views 2 answers
My husband had two spots on his skin tested for cancer in Nov. -08, one on his arm and one on his forehead in a very visible place. The one on the arm came back from the lab diagnosed as Basal Cell carcinoma, the other one came back as harmless. He had an operation and removed the Basal Cell. The other one did not go away. We became suspicious since it did not heal. He went back to the doctor's office. A nurse looked at it and he was told to wait a month. Then it had grown into an ugly growth and he went back to the doctor who now got suspicious and said it was good that he came. He did a biopsy and sent it off to the lab again. It now came back as Squamish Cell. So the lab had been wrong the first time!! A time was set for surgery three weeks later. The cancer now became extremly aggressive and grew VERY fast, was very sore and looked infected and very ugly. I called the doctor's office 3 times, explained that it looked very bad and had grown very fast and asked them to bring him in earlier. They would not let him come in any earlier than scheduled. When the surgery finally took place, it was approx. three months form the very first biopsy which came back as harmless. When the doctor now saw the growth, he decided to do Moh's surgery which was not planned. That I know, because I had called the office to find out how much the operation was going to cost, since we have a high deductable and have to pay that one out of pocket. I was told that the doctor had estimated it to a little under $1.000.00. The surgery left a hole of approxam. 1 1/2 inch in diam. and between 1/2 and 3/4 inch deep. It took 20 stiches on the outside and at least 5 on the inside. Lots of pain, time out, swelling in the face and a big scar with an indentation. Not to speak about the finances, $3.800.00 for the surgery alone and then additional costs, including the extra lab costs. We want to sue the lab. IF they had given us the right diagnosis from the beginning, it should have been a very minor little blemish to remove. Now it is a totally different story, which really upsets us! Our doctor informed us yesterday that he had talked to the person who diagnosed it. He had said that he made the right diagnose, but" it was printed wrong!! " How can they be so careless - playing with peoples' lives? What if it had been melanoma? And we don't know what this has done to my husband's body. The doctor said, that there is a possibility that it could have spread in his body, even if he didn't think so. We are VERY upset about this and our doctor totally understand our feelings. Sincerely, Anette and Eric Anders

Attorney Answers

2
John Kaman ·
If you can find a l;awyer to sue for it then do it. You have all the elements of a good suit: misdiagnosis, pain, suffering temporary disfigurement, etc. The doctor's role in all this sounds suspicious so think about suing him too. He should have recognized the mistake. He's trying to cast 100% blame on the lab. Don't let him get away with that.
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Elizabeth Herd ·
Mr. and Mrs. Anders- You have a deviation from the standard of care with a 3 month delay. The difficulty in bringing a successful legal claim against the lab and/or doctor in Florida arises from your recoverable damages vs. the expenses of the lawsuit. You said you had insurance, but also had a high detuctible. First, it is doubtful that the squamous cell carcinoma has spread. As long as it has not, (and it is doubtful that in 3 months it would do so), the physical damages are the scar on the arm that is bigger than it would have been. I have never seen a skin cancer case, either basal cell or squamous cell that did not involve a Mohs procedure if it was done by a dermatologist. Many plastic surgeons will use other procedures, but the bottom line is that you would have needed a surgical procedure of some kind to remove the cancer. Your out of pocket cost for your deductible might be somewhat lower, but in litigation where we need a dermatologist and a lab expert, for the review and cost of obtaining your records we will likely spend more than $5,000. It is a sad state of affairs in Florida where we are not able to pursue smaller damages cases that are meritorius because the physicians and medical societies have been successful in placing caps on pain and suffering damages and requiring work on the front end before suit is filed that raises the cost of the litigation. You do have one alternative to filing suit and that is to report the practitioner and lab to the Agency for Healthcare Administration. You should be able to locate the email address with a routine Google search. I am sorry that I don't have different news for you, but the only recovery you have is for the difference in your diagnosis that is related to the 3 month delay. It is my hope and prayer for you that those damages are very small. Betsey Herd Morgenstern & Herd, P.A. Tampa, Florida 813-597-3000
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