Can a doctor be sued for not sending a mole that was removed to pathology and it grew back resulting in stage 3 melanoma?

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Can a doctor be sued for not sending a mole that was removed to pathology and it grew back resulting in stage 3 melanoma?

A doctor removed a mole from my husband’s back (in her office) and never sent it to pathology. It grew back spreading to his lymph node. He’s had his sentenal node removed along with all the lymph nodes on the right side (27). He now has to do innerfurron treatments for the next year. We’ve lost our home and by the time he is through his treatments, he will have lost 2 years of income. We also have an 8 year old little boy to think of as well.

Asked on August 7, 2011 Michigan

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Sorry to hear about your husband and your family's situation.

Medical malpractice is based on negligence.  Negligence is the failure to exercise due care (that degree of care that in this case a reasonable physician in the community would have exercised under the same or similar circumstances).  To prove negligence requires proving duty, breach, actual cause, proximate cause, damages.  Duty refers to duty of due care mentioned above.  Breach is the failure to exercise due care.  Actual cause means but for the doctor not sending the mole to pathology would your husband's melanoma have developed?  If the answer is no which appears to be the case, actual cause has been established.  Proximate cause means were there any unforeseeable intervening events which would relieve the doctor of liability?  If the answer is no, proximate cause has been established.  Damages is the amount you are seeking to recover in your lawsuit for negligence against the doctor.  This would include the medical bills, compensation for pain and suffering and documentation of wage loss.

Prior to filing a lawsuit, obtain your husband's medical bills, medical reports, and documentation of wage loss.  It may be possible to settle the case with the doctor's insurance carrier. Your husband's claim would consist of the medical bills, medical reports, and documentation of wage loss.  Compensation for the medical bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The medical reports will document the nature and extent of your husband's condition and will be used to determine compensation for pain and suffering.  Compensation for pain and suffering is an amount in addition to the medical bills.

It would be premature to file a claim until your husband has either been released from medical treatment or declared to be permanent and stationary which means no further improvement is anticipated.  If the case is settled prematurely, your husband won't be able to obtain additional compensation later, although the amount of the settlement can include the estimated cost of future treatment.  If your husband is dissatisfied with settlement offers from the doctor's insurance carrier, file the lawsuit for negligence.  If the case is NOT settled, your husband must file his lawsuit for negligence against the doctor prior to the expiration of the applicable statute of limitations or he will lose his rights forever in the matter.

It would be advisable to speak with a medical malpractice attorney.

 

 


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