The Lombardi Law Firm Blog

Wrong=Site Surgery: Medical issues clearer and benefiting patients and doctors

Medical Malpractice - Iowa Supreme Court allows patients to give the doctor the benefit of the doubt before definitive diagnosis is made.

Iowa Supreme Court Decision – Med. Malp. – Breast Cancer Detection Case Allowed to Proceed

Pamela Rock developed a lump on her breast. She went to the doctor who later diagnosed breast cancer. She alleges malpractice in the detection process and what was told to her about her condition. Allegations are just that and will need to be proven. The District Court and the Iowa Court of Appeals found she filed her case too late; two days late. The Iowa Supreme Court in a decision that backs away from the Court’s latest pronouncements for tort deform held her case could proceed.

“Previously, we held the statute of limitations begins to run as soon as the plaintiff knew or should have known of the physical or mental harm for which damages are sought. Schlote v. Dawson, 676 N.W.2d 187, 194 (Iowa 2004); Langner, 533 N.W.2d at 517. In Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008), we acknowledged our past cases may not have correctly captured the intent of the legislature. Rathje, 745 N.W.2d at 447.”

This is good news for patients and doctors. Patients are given the benefit of the doubt in trusting their doctors and to allow them to do the job they’ve been trained to do. It’s good news for doctors because patients aren’t being forced to second-guess every medical decision and test and to seek second opinions.

“Pamela Rock noticed a lump in her left breast in May 2002. She called Dr. Warhank at the Family Medical Center in Blue Grass to have it examined. Rock was referred to the Center for Breast Health for a bilateral mammogram, which was performed on May 28. Rock had a follow-up appointment with Dr. Warhank on June 3. Dr. Warhank palpated Rock’s left breast and located the lump. Dr. Warhank told Rock the mammogram was normal and not to worry about the lump. Sometime on June 3 or 4, Rock received a call requesting she come in for additional views of her right breast. Rock went to the Center for Breast Health on June 4 and had additional views of the right breast taken. A technician told Rock an ultrasound was not necessary because what was seen in the earlier mammogram was no longer present. Rock reminded the technician she had a lump in her left breast and not her right breast. The technician assured Rock nothing was seen on the earlier mammogram of her left breast so she should not worry about the lump anymore. Dr. Hartung reviewed the radiology report of the right breast and advised Rock in a letter dated June 5 that the additional views of the right breast showed no sign of cancer. In September 2002, Rock was still concerned about the lump in her left breast. She made an appointment with Dr. Kelly at the Family Medical Center. Dr. Kelly told Rock the lump was “probably benign.” Nevertheless, Dr. Kelly recommended a surgical consult and referred Rock to Dr. Congreve. Dr. Congreve performed a fine-needle aspiration on September 25. Two days later, Dr. Congreve called Rock and told her the test was not normal and she needed to have a biopsy of her left breast. On October 8, 2002, Dr. Congreve performed the biopsy and diagnosed Rock with breast cancer.”

Rock filed suit on October 5, 2004. The Iowa Supreme Court held: “Rock could not have known, and should not have known, of her injury and its factual cause until the day she was diagnosed with cancer at the earliest.”

This common sense reasoning respects the various roles of doctor and patient. It allows and encourages the patient to respect the doctor’s every decision before a definitive diagnosis is determined. It also respects the doctor’s decision making process without forcing the patient to second-guess the decision making process and trying to force the medical decision-making process.

PAMELA G. ROCK and

KEITH A. ROCK,

Appellants,

vs.

ROSE WARHANK, BLUE GRASS FAMILY

MEDICAL CENTER a/k/a FAMILY MEDICAL

CENTER OF BLUE GRASS, ROBERT

HARTUNG, CENTER FOR BREAST HEALTH,

and GENESIS MEDICAL CENTER,

No. 05-1753, November 21, 2008.

I’d like to thank Dave Mittleman from Michigan for pointing out the significance of this decision.  Dave has been fighting federal preemption in the Michigan Court system.