Accrual of Failure to Diagnose Breast Cancer Claim

A woman underwent frequent mammograms and other screening procedures for breast cancer. Her paternal grandmother had successfully overcome the disease and two other relatives had died of different types of cancer. She began seeing a breast surgeon for ongoing evaluation for breast microcalcifications. Thereafter, she saw him on multiple occasions for continued evaluation of her breast calcifications, consistent with the breast surgeon's recommended semi-annual screening.


A bilateral breast MRI was performed, which revealed cysts in both breasts and a small nodule in the left breast that was unchanged compared to previous tests. A month later, a follow-up physical exam with another surgeon in the practice group noted no discrete mass in either breast, and a mammogram and ultrasound were scheduled for six months later. As with prior occasions, the surgeon agreed with the recommendations of the radiologists, and did not order a biopsy. He indicated that if the exams to be conducted in six months were stable, yearly mammograms and clinical rechecks would be adequate.


Ultrasound and mammogram studies ordered and reviewed six months later revealed the presence of suspicious lumps with calcifications and a tumor in the right breast, for which the second surgeon in the practice group recommended a core biopsy. Later that month, the woman got a second opinion from a surgeon at a different practice group about these suspicious findings. Further investigation revealed that the woman was suffering from stage IIIA breast cancer and that it had spread to her lymph system. The woman underwent treatment for breast cancer including chemotherapy. Over a year after her diagnosis she began to attend breast cancer survivor meetings and therapy sessions.


Three and a half years after her diagnosis, the woman sued the surgeons and their practice group for a negligent delay in the diagnosis of her breast cancer. The surgeons filed a motion for summary judgment on the ground that her claim was barred by the three-year statute of limitations. The woman argued that that the claim was not time-barred because she did not know, and with reasonable diligence could not have known, that she had been injured by the surgeons' failure to diagnose until she began attending breast cancer survivor meetings and therapy sessions two years prior to filing the suit. Thus, her complaint was filed well within the limitations period.


The trial court granted the healthcare providers’ motion for summary judgment. The trial court noted that the woman was acutely aware of her potential for breast cancer, as her paternal grandmother had successfully overcome the disease and two other relatives had died of different types of cancer. Given her family history and her diligence in following prescribed screening procedures, the judge concluded that a reasonable person in her position would necessarily suspect that something had to have been missed by the breast surgeons or others at their practice group who reviewed her many recent screenings. The trial court held that the woman was on notice at the time she was diagnosed that a missed diagnosis or a failure to follow-up on imaging studies or screenings may have caused a harmful delay in the diagnosis of her breast cancer. The woman appealed arguing that what she should reasonably have known was a question that should have been entrusted to a jury, not a judge on summary judgment.


The Appeals Court of Massachusetts reversed. The court held that a genuine issue of material fact existed as to when a reasonable person in the woman's position would or should have known that her injury was caused by the negligence of her healthcare providers.


The court held that the Massachusetts’ limitations period on a medical malpractice claim was three years from the date when the cause of action accrued. A cause of action for medical malpractice accrued when the plaintiff learned, or reasonably should have learned, that he or she was harmed by the defendant's conduct. Once it has been shown that the time between a plaintiff's injury and the applicable time limits has been exceeded, the plaintiff bears the burden to show that the claim falls within the discovery rule. In determining whether a party has sufficient notice of causation, the court’s inquiry was whether, based on the information available to the plaintiff, a reasonably prudent person in the plaintiff's position should have discovered the cause of his or her injuries. The question when a plaintiff knew or should have known of his cause of action was one of fact ordinarily to be determined by the jury.


The court viewed the trial court's decision to be based upon an unsupported assumption that a reasonable person would assume, at the point the cancer diagnosis was made, that her doctors must have negligently missed her cancer. The court reviewed the record and found that it did not reveal that the woman had such notice. The court noted that the record did not demonstrate that how cancer develops, the progression from one stage to another, and the speed and timing of the progression was either a matter of common knowledge, or that a person with attentiveness to cancer screenings would know or have reason to know this information. Neither the second opinion surgeon's report, nor the fact that she informed the woman that her cancer was at stage IIIA provide, as matter of law, the kind and degree of notice of causation warranting investigation of the possible fault of the woman's past medical providers.


The court reasoned that even if the woman had initially suspected that something was amiss upon her diagnosis, this suspicion alone would not be dispositive. The woman's affidavit in opposition to summary judgment stated that following her surgery she was neither capable (because of the recovery period and chemotherapy) nor inclined to assess blame or inquire into anything other than what she needed to do to get well. When the woman and her husband asked the second opinion surgeon how the cancer had gotten this far, the second opinion surgeon did not want to discuss whether the cancer diagnosis had been delayed. The court reasoned that given her doctor's refusal to discuss any delay in diagnosis, a reasonable juror could properly conclude that the woman's failure to inquire further about her prior breast surgeons' failure to diagnose was reasonable and that her claims were, therefore, timely.


The Appeals Court of Massachusetts reversed the trial court’s grant of the healthcare providers’ motion for summary judgment that dismissed the woman’s complaint for medical malpractice on statute of limitations grounds.


See: Dagley v. Murphy, 85 Mass.App.Ct. 1105, 2014 WL 916667 (Mass.App.Ct., March 11, 2014) (not designated for publication).


See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis