Skin Cancer Misdiagnosis and Medical Malpractice

Misdiagnosis is one of the most common types of medical negligence, and misdiagnosis of skin cancer is one of the most common forms of misdiagnosis. Every lump, bump, mole, and blemish has a different name, although they are barely distinguishable to the layman. Skin cancer misdiagnosis is especially problematic because skin cancer is the most common form of cancer in the United States.

Main Types of Skin Cancer

The three major types of skin cancer are, in increasing order of severity, basal cell carcinoma, squamous cell carcinoma, and melanoma.

The vast majority of skin cancers are basal cell carcinomas, which are not particularly dangerous and can sit undisturbed for years. They rarely metastasize.

Squamous cell carcinomas have a somewhat higher, although still quite low, danger of metastasis. These easily treatable cancers are very common. More than two million Americans are treated for these cancers each year.

However, melanoma, the most severe form of skin cancer, can be fatal. If it metastasizes, particularly to far parts of the body, the chances of survival are very poor.

How Skin Cancer is Misdiagnosed: Who Should Diagnose?

Skin cancer is one of the most misdiagnosed forms of cancer because it can take so many different looks or forms. Skin cancers can be pigmented or unpigmented, have clear or vague borders, be raised or flat, look like a sore or just a minor blemish, to name just some of the many possible characteristics. Physicians can misdiagnose skin cancers as any number of benign conditions, such as acne, cysts, eczema, or psoriasis, to name a few.

Because of the difficulty in diagnosing skin cancer, a primary care provider should always send the patient to a dermatologist for a definitive diagnosis. Many skin cancer misdiagnoses come from a primary care provider's attempt to treat the skin cancer by him/herself. A primary care provider's failure to refer a patient to a dermatologist can be considered medical malpractice. If you have a suspicious growth on your body, you should always ask your primary care physician to refer you to a dermatologist.

But even the experts can misdiagnose skin cancer. The dermatologist might make a mistake in performing the biopsy. He/she might fail to obtain a large enough sample. If a proper biopsy is not taken, the pathologist will have an inadequate tissue sample with which to work.

Even if the pathologist has a sufficient tissue sample, the pathologist can misread the biopsy results, or the dermatologist might misunderstand the pathologist's report. Believe it or not, the most common medical malpractice claims against pathologists were failure to diagnose melanoma (called a false-negative diagnosis). But pathologists' error rates are unfortunately high for all types of skin cancer. One recent study showed that as much as 21% of basal cell and squamous cell carcinomas were misdiagnosed during the biopsy.

Proving Liability in a Skin Cancer Misdiagnosis Case

Medical malpractice cases are personal injury cases. In every personal injury case, the plaintiff has to prove that the defendant (i.e., the physician) was negligent, and that the defendant's negligence was a cause of the plaintiff's injury.

Proving negligence in almost any medical malpractice case, and every misdiagnosis case, requires a medical expert. This means that the plaintiff's lawyer has to hire a physician -- usually a physician in the same field as the defendant -- who reviews the plaintiff's medical records and offers an opinion as to whether the defendant was negligent.

In a skin cancer misdiagnosis case, the plaintiff's lawyer will have to hire a dermatologist (if the defendant is a dermatologist) or a primary care physician (if the defendant is a general practitioner) to review the plaintiff's medical records and provide an opinion as to

  • what the applicable standard of care is, and
  • whether the defendant violated the applicable standard of care and was thus negligent.

The standard of care is basically how a reasonably competent physician in that field should act. So, for example, if a patient comes to a primary care physician with, say, a bleeding mole, the applicable standard of care is that the primary care physician should refer that patient to a dermatologist immediately. Failure to refer the patient immediately amounts to negligence.

For further information on proving liability in a medical malpractice case, please see Challenges in Suing for Medical Malpractice.

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