Failure to Diagnose Cervical Cancer

Diagnosis with cervical cancer is frightening under any circumstances. Possibly facing a hysterectomy, chemotherapy, and even death is devastating to any woman, but that pain is deepened by unique anger and disbelief for women who have undergone regular gynecological exams in order to prevent just such a tragedy.

Cervical cancer is nearly always preventable. When caught early, the treatment is minimally invasive, and highly successful. A Pap smear, obtained during routine pelvic exams, detects pre-cancerous changes, called dysplasia, in the cervix. This is the primary reason for undergoing the simple, yet very unpleasant procedure.

Unfortunately, Pap smear error is not uncommon, leaving the impending cancer undetected and allowing it to grow. Undiagnosed cancer can progress to the point that aggressive and invasive treatments are required. Sometimes it is just too late for successful treatment and the misdiagnoses ends in untimely death.

Dysplasia occurs before cancerous cells form in the cervix. Once the cancer forms it can grow and spread to the surrounding reproductive organs, including the uterus and ovaries, making a hysterectomy the only life-saving option. Women who survive failure to diagnose cervical cancer are often needlessly robbed of their ability to bear children.

When pre-cancerous cells are detected early, they can be removed effectively through a simple, minimally invasive procedure called a cone biopsy, avoiding a hysterectomy and other aggressive cancer treatments.

Cancer that has grown and spread to the point that it cannot be fully treated by biopsy or even hysterectomy requires aggressive and harmful treatments. Chemotherapy and radiation ravage the body and can cause permanent health problems. Radiation treatments alone can result in problems including:
• Radiation-induced gastrointestinal reflux disease
• Radiation proctitis
• Radiation cystitis
• Death

Why cervical cancer is misdiagnosed
Although the test is performed in your doctor’s office, a Pap smear is usually read in the laboratory by technicians called cytotechnologists. Cytotechnologists are trained professionals, but they are not doctors.

When the test is actually read correctly, many doctors fail to follow up with patients regarding abnormal results, leading to delayed notification and delayed treatment.

In addition to filing to detect dysplasia and failing to follow up with patients, some doctors overlook the symptoms and warning signs of cervical cancer including:
• Abnormal vaginal bleeding
• Unusual vaginal discharge (with or without blood)
• Vaginal odor
• Pelvic pain
• Pain during sex
• Bowel symptoms
• Blood in stool
• Bladder symptoms
• Blood in urine

Delayed diagnosis of cervical cancer can change your life forever, and often ends in tragedy. It is avoidable medical negligence. Cervical cancer misdiagnosis can lead to:
• More aggressive treatments
• More expensive treatment
• Pain
• Loss of reproductive organs
• Loss of enjoyment of life
• Permanent disability
• Depression
• Death

New Jersey medical malpractice lawyer Michael L. Weiss, Esq. is currently litigating several cases on behalf of women with improperly delayed diagnosis of cervical cancer, and recently settled a claim stemming from an improperly delayed diagnosis of a cervical cancer for 1.8 million dollars.

Trouble Finding A California Medical Malpractice Lawyer?

If you or a loved one has been misdiagnosed or have been a victim of medical malpractice in the State of California and would like to take the doctor or hospital to court, you my find it very difficult to get a lawyer to represent you. There’s a reason California personal injury lawyers cringe at medical malpractice lawsuits – in this state, we have a $250,000 cap on medical malpractice awards and a cap on attorney’s fees. These two factors combine to make the pursuit of a medical malpractice not worth the costs and risks for wronged patients and their attorneys.

This cap on medical malpractice awards has been in existence for more than 30 years now in California. In 1975, the state enacted legislation capping malpractice awards and lowering attorneys’ fees (only for the patients’ attorneys) after doctors and insurers in California protested saying oversized awards and ever-increasing insurance rates were driving physicians out of the state.

What this law known as Medical Injury Compensation Reform Act (MICRA) essentially did was limit the amount of money for “pain and suffering” – which is the physical and emotional distress caused by an injury – to $250,000. There is no limit on what patients can collect for loss of future wages and other expenses. So if a non-wage earner dies because of medical malpractice the maximum jury award would be $250,000 no matter what.

But the big question that lingers all these years is: Has there really been a benefit to the public in terms of insurance premiums lower health care cost because of this cap? Victim advocates and experts who oppose the cap say: No. This law, they say, is increasingly preventing victims and their families from getting their day in court. This is especially true of the most vulnerable population such as low-income families, children and seniors. Opponents of the caps also argue that this limit on pain and suffering has never been raised or affected by inflation over the last three decades.

As for attorneys, it is not a cheap proposition. They bear the out of pocket costs of putting on these trials. Those costs easily exceed $75,000 and they have been skyrocketing over the years. Ad a discount fee structure and it makes no economic sense for attorneys to represent malpractice victims, they are much better off working for the medical providers and their insurance companies.

The malpractice caps are being reconsidered in many states because of the manner in which they have been hurting poorer patients. But California has never reconsidered these caps. A recent Los Angeles Times investigation (,1,5087969,full.story) revealed that the cap is in fact preventing many California families from getting their day in court.

Here are some of the findings listed in the Times article:

  • Court malpractice filings have fallen in eight out of the 10 most heavily populated counties. In Los Angeles county there was a 48 percent drop in filings since 2001 and a 29 percent drop in Orange County,
  • At Kaiser Permanente, where arbitration is the way rather than court, claims have fallen by 20 percent since 2001.
  • The number of payments to victims and their families across California had also dropped by 24 percent since 1991. The Times looked at a federal database of half a million claims to make that determination
  • Insurance companies have made record profits in California compared to other states. The Times article states that California insurers have only paid 39 cents of every premium dollar since 1991 while the national average was 63 cents.

In spite of these facts, proponents of MICRA paint a dire picture of a world without caps or increased caps saying that it would lead to significantly higher healthcare costs and limit patients’ access to doctors.

But several studies done on the subject especially one by The Foundation for Taxpayer and Consumer Rights (, say the malpractice caps have not helped doctors either. The study says that other state policymakers should learn from California’s experience.

The state with its cap tried to set tort limits and voters through the passage of Prop 103 in 1988 set the stage for insurance reform. The study concludes that while the stringent continued regulation of malpractice insurance rates lowered premiums for doctors, malpractice caps and other restrictions on the tort system failed to provide doctors the relief they sought. This study found that malpractice rates rose six-fold between 1975 and 1988, until Proposition 103 was passed, after which those rates have held steady.

One of the largest studies done on the topic was by Dartmouth College researchers, which is also cited in the Los Angeles Times article. This study concluded that malpractice payments have risen along with medical care costs, while doctors’ insurance premiums grew way quickly – by double-digit percentages annually for some specialties.

The caps, above all, violate victims’ constitutional rights to due process and equal protection by limiting what they can receive for their pain and suffering. How it is equal protection if you suffer a particular injury because of a doctor’s negligence as opposed to a traffic accident and the doctor is not held fully accountable, but the negligent driver is made to pay?

A recent decision in Cooke County, Illinois, where a judge struck down a two –year-old state law that capped compensation to victims, gives new hope. According to an article in the Chicago Tribune (,0,6319134.story), Cooke County Circuit Court Judge Diane Larsen decided that caps on malpractice awards violated the Illinois Constitution’s “separation of powers” clause.

She ruled that the legislature cannot interfere with the right of judges and juries to determine fair damages. Her ruling reportedly falls in line with a 1997 Illinois Supreme Court decision, which overturned a 1995 law setting caps on personal injury lawsuits.

Many California personal injury attorneys are looking for the “right case” to appeal to our state’s highest court with similar arguments to overturn these caps that are neither equitable nor beneficial to doctors or patients. We hope this law changes soon so patients can actually get fair compensation for their injuries or at least the opportunity to have their day in court.

What is the Medical Injury Compensation Reform Act (MICRA)?

The law enacted in 1975 basically did the following:

  • Placed a $250,000 cap on the amount of compensation

paid to malpractice victims for their “non-economic”


  • Eliminated the “collateral source rule” that forces

those found liable for malpractice to pay all the

expenses incurred by the victim.

  • Permitted those found liable for malpractice to pay

the compensation they owe victims on an installment

plan basis.

  • Imposed a short “statute of limitations” on

malpractice victims (generally one year).

  • Established a lowered sliding scale for attorneys’ fees that

discourages lawyers from accepting malpractice cases.

Source: How Insurance Reform Lowered Doctors’ Medical Malpractice Rates In California, The Foundation for Taxpayer and Consumer Rights


Bisnar Chase, LLP.


Additional Personal Injury Information for Consumers

How To Know If You Have A Valid Medical Malpractice Suit

When patients go to their doctors for advice or enter the hospital for an operation, they expect to receive the best care possible under the guidelines of medical practice and state laws. Sometimes, the accepted standards of practice are ignored and a health care provider may commit medical malpractice, which often leads to injury and other irreversible consequences. Overall, medical malpractice involves the negligence on the part of professional medical staff.

The issue of medical malpractice is so important in the eyes of the public and government that the United States has developed specific medical malpractice laws to deal with this concern. In order to take suspected medical malpractice case before a court of law, a medical provider must have done something they weren’t supposed to do or failed to complete an act they should have performed.

Medical malpractice suits arise when failed medical services result in detrimental injury, decreased chances of recovery, and in the worst cases – death. When a professional in the health care business commits negligence, it is up to the patient to make it known and confirmed. This is often accomplished by taking the issue to court. In the end, a guilty medical care provider will be held accountable for all of the injury or damages their actions (or lack thereof) have caused.

Since medical malpractice is a severe issue, there are certain restrictions imposed that also protects doctors, surgeons, and hospitals from misuse of the judicial system. Varying on a state-to-state basis, a range of strict time limitations are upheld, which prevents the pursuit of certain lawsuits. Whichever state the medical malpractice is said to have taken place is where the injured party must abide by state time limitations. Therefore, if a patient living in Wisconsin received ill treatment in New Jersey, their medical malpractice suit must reflect the regulations set by the state of New Jersey.

While there are state limitations regarding medical malpractice, there are also exceptions to the rule. For instance, the normal time limits for placing a malpractice claim in New York is within two and a half years of the offending act. However, if the malpractice caused injury to a child, New York State provides ten years to bring a case to court. An additional clause states that once a child reaches the age of 20 and a half years of age, they may not bring forward a medical malpractice suit to court. Another exception to the limitation rule is the uncovering of medical instruments left within the body after an operation, where a patient has up to one year after its discovery to make a claim.

In a medical malpractice claim, the involved parties include a plaintiff (the patient) and the defendant (health care provider). Under law, the defendant may include physicians, dentists, nurses, therapists, hospitals, clinics, and other managed health care facilities.

A plaintiff is responsible for proving a variety of case details in order to succeed in their medical malpractice claim. This includes: a duty was owed (care or treatment), a duty was breached (failure to adhere to standards of care), the breach caused injury, and damages came as a result. One of the most important things to prove in a medical malpractice case is that damages occurred during failed medical care. Without damages, a medical malpractice claim has no basis even if a medical provider was indeed negligent in their actions.

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