Legal Question in Medical Malpractice in United States
At 6 months of age, a growth appeared on my sons lip. We took him to his pediatrician who referred him to a dermatologist. The dermatologist was unsure of what the growth was. His pediatrician then referred him to an Ear Nose and Throat specialist, thinking that they may remove the growth. The ENT was also unsure of what it was and since the growth had blood vessels and was attached to his lip, he referred Isaac to Helen DeVos hematology/oncology. After meeting with the Hematologist she recommended that we get it removed. The hematologist then referred us to a pediatric plastic surgeon. We met with the plastic surgeon. He stated that it may be a blocked salivary gland but the only way we would know for sure would be to remove it and look at it under a microscope. After contemplating, I decided to go with the surgery for Isaac. The plan was to remove the growth and have it sent to pathology. Surgery went well and the surgeon spoke with us briefly after Isaac was recovering from surgery. He stated that it was really easy to move. It was scar tissue from an injury (Mind you, Isaac never had an injury. This growth appeared out of nowhere at 6 months of age). The surgeon said that he would see us in a couple weeks and then walked out of the room.
After going home and thinking about the surgery, my husband and I thought it was kind of weird that the surgeon said it was from injury and was scar tissue. Especially since at our consultation with the surgeon, we had no discussion of an injury and he thought it looked like a blocked salivary gland. I called the surgeons office the next morning. I wanted to make sure they sent the tissue to pathology since that was the plan. His nurse, Lisa then pulled up his Isaac's chart. The chart had no documentation of the specimen being sent over to pathology. Lisa told me she would leave the surgeon a message and then get back to me to confirm. When Isaac had his surgery, it was at an outpatient surgery center. I contacted the outpatient surgery center. I spoke with the nurse who was in the operating room. She told me the surgeon threw away the specimen because he thought it was scar tissue. I then call Lisa back to let her know that it was in fact thrown away. She said she was sorry and that maybe the surgeon had gotten Isaac confused with another patient. Apparently they do a lot of cosmetic surgery there. Lisa called me back later to tell me that she spoke with the surgeon. He said he was sorry and wondered why we didn't correct him, when he had mentioned scar tissue.
After going back and forth with Helen Devos (hospital surgeon works for). They told the pediatrician there was nothing else they could do. No additional testing could be done. They couldn't do anything without the specimen. The best thing they could offer was for us to make an appointment with the surgeon and ask him any questions we may have.
What should I do? Can I sue him or would this be a waste of my time?
3 Answers from Attorneys
As you describe the facts, disposing the tissue without pathology would be malpractice. The question is whether there was damage (an injury resulting from the malpractice)--hopefully not. There are three possible scenarios that come to mind: (1) this lesion was benign--in which case, "no harm no foul"; (2) it was malignant but he removed the entire tumor and there was no metastasis (again, "no harm no foul"); or (3) it was malignant and they either did not get it all or it metastasized -- in which case there is harm. Hopefully it was 1 or 2 and you have no case (other than reporting his conduct to the Board of Medicine). If it is 3 you have a case, but likely will not know for quite some time-I recommend that you get a second opinion from a pediatric oncologist--this may be something that needs to be followed.
So, to answer your legal question--there's not enough to sue on now, maybe later, but I hope not. Good luck.
Unbelievable. The plastic surgeon obviously had the wrong history. In hindsight, the referral to the plastic surgeon might not have been the best idea given the suspicion of cancer. I would have wanted to go to an ENT if the surgery was being done as a diagnostic procedure.
To successfully sue, you have to prove that he was harmed, and if it was not cancer then he was not. If it was, the question will be whether the delay in diagnosis created a greater risk. So, deal with the medical problems you have on your plate and the if he is diagnosed with cancer consider consulting a lawyer if it appears to you that the diagnostic delay caused him harm. You should find out what the statute of limitations is in your state. Ordinarily, it is tolled for minors, so you probably have plenty of time if you have to litigate.
You might consider going to a pediatric otolaryngologist who (a) will have a better idea of the landscape of possible cancers that could present in a way that your son's growth did and (b) who might provide you with some guidance regarding possible further follow-up testing available (if any) so that you are not just sitting around waiting to find out if things are going blow up into a significant problem,
Good luck.
The threshold question here is "what are your damages?"
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