Steven E. North, Esq. and Laurence M. Deutsch, Esq.
A false positive is just what it sounds like. A patient’s test result indicates positive (yes, the condition is present) when, in fact, it is not. It is easy to imagine a patient’s happiness on learning that the test result was wrong, but what sometimes goes unrecognized is the anguish a patient experiences between the time of the initial result and the ultimate, happier finding.
We prosecuted a medical malpractice case on behalf of a woman advised that a biopsy in the vaginal area was positive for cancer. Successful treatment would necessitate, among other things, a complete reconstruction of her reproductive system including radical surgical removal of all of her paravaginal tissue as well as her reproductive organs. It took weeks for this young woman to have the appropriate consultations and schedule surgery. It was not until she was in the hospital prepared to undergo the surgery that she was advised that a rereading of the pathology specimen revealed that it was not cancer at all and that in effect she could go home and celebrate. Nothing more be done.
Our client’s initial joy was quickly eclipsed by anger and distress. She found herself unable to purge from her mind the suffering she experienced from the time of the false positive result right up the very brink of life-altering surgery, when she learned that she did not have cancer. In addition to this phenomenon, patients like our client sometimes lose trust in the medical establishment, which may lead to their failure to follow up on other medical matters in the future.
Despite the emotional punishment experienced by patients like our client, the fact is that unless a skilled attorney can get the jury to fully appreciate the turmoil the patient endured, that jury might render an inconsequential damage verdict given the patient’s reprieve from a cancer diagnosis. It is also important to keep in mind that many studies reveal that both false positives and false negatives occur. The mere fact that the result is “wrong” does not mean that there was negligence or malpractice. It must be established that the error was not an acceptable one and that there was a misreading of the data which lead to the false findings.
Sometimes the worst of all situations is a false negative result because the patient and doctor may be led down the “garden path” thinking that all is well when immediate attention is required. Although some physicians may be reluctant to repeat test, it is important for a patient to insist if a result is seemingly “out of whack” with what would be reasonably expected. Sometimes news really is too good to be true.
The New York Times, February 21, 2017, page D4
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Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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