Pathology and Biopsy Errors in New York Cancer Cases

The Role of Pathology in Cancer Diagnosis

Pathology is the gold standard for cancer diagnosis. Imaging (mammography, CT, MRI) can identify suspicious areas, but only pathology -- the microscopic examination of tissue -- can definitively diagnose cancer.

The pathology process involves:

• Tissue acquisition: A sample of tissue is obtained through biopsy (needle biopsy, excisional biopsy, endoscopic biopsy, or surgical resection).
• Tissue processing: The tissue is fixed (typically in formalin), embedded in paraffin, sliced into thin sections, and placed on glass slides.
• Staining: The slides are stained (typically with H&E -- hematoxylin and eosin) to make the cells visible under a microscope.
• Microscopic examination: The pathologist examines the slides under a microscope to identify abnormal cells, determine the type of cancer, assess the grade (how aggressive it appears), and evaluate the depth of invasion.
• Special studies: In some cases, additional studies are performed, including immunohistochemistry (IHC), flow cytometry, cytogenetics, and molecular testing. These studies help classify the cancer and guide treatment decisions.
• Pathology report: The pathologist issues a report detailing the diagnosis, including the type of cancer, grade, depth of invasion, margins (whether the tumor was completely removed), and any special study results.

Common Types of Pathology and Biopsy Errors

Pathology and biopsy errors can occur at several points:

• False negative: The pathologist misses cancer that is present in the tissue. The patient is told the biopsy is benign, and the cancer goes untreated. This is the most dangerous type of pathology error.
• False positive: The pathologist diagnoses cancer when it is not present. The patient undergoes unnecessary surgery, chemotherapy, or radiation -- all of which carry significant risks.
• Misclassification: The pathologist misclassifies the type of cancer. For example, misclassifying adenocarcinoma as squamous cell carcinoma can lead to inappropriate treatment, as different cancer types respond to different treatments.
• Misgrading: The pathologist misgrades the cancer -- for example, grading a high-grade (aggressive) cancer as low-grade. This can lead to undertreatment.
• Failure to assess depth of invasion: The depth of tumor invasion determines the stage and treatment. Failure to accurately assess invasion may lead to inappropriate treatment.
• Margin assessment errors: The pathologist fails to accurately assess whether the tumor was completely removed (clear margins). A false assessment of clear margins can lead to incomplete resection and cancer recurrence.
• Failure to perform special studies: The pathologist fails to perform necessary special studies (immunohistochemistry, flow cytometry, molecular testing), leading to misclassification or inappropriate treatment.
• Tissue handling errors: The tissue is not properly fixed, processed, or sectioned, resulting in slides that are not diagnostic.
• Mislabeling errors: The tissue is mislabeled, leading to results being attributed to the wrong patient. This is a catastrophic error.

How Biopsy Errors Occur

Biopsy errors can occur before the tissue reaches the pathologist:

• Sampling error: The biopsy needle or forceps does not sample the suspicious area, and the tissue submitted to the pathologist does not contain the cancer. This is a particular risk with needle biopsies and small lesions.
• Inadequate tissue: The biopsy does not obtain enough tissue for a definitive diagnosis. The standard of care requires repeat biopsy when the tissue is inadequate.
• Tissue handling errors: The tissue is not properly fixed in formalin, is allowed to dry out, or is not properly transported to the pathology lab.
• Failure to obtain adequate margins: During surgical resection, the surgeon fails to obtain adequate margins, and the pathologist cannot accurately assess whether the tumor was completely removed.

Cancer Types Where Pathology Errors Are Common

Pathology errors can occur with any cancer type, but some are particularly vulnerable:

• Breast cancer: Misdiagnosis of DCIS (ductal carcinoma in situ) vs. invasive cancer, misgrading, and false negatives on core needle biopsy. [Link to: /misdiagnosis/breast-cancer-misdiagnosis]
• Prostate cancer: Misreading prostate needle biopsies, overgrading or undergrading (Gleason score), and false negatives. [Link to: /misdiagnosis/prostate-cancer-misdiagnosis]
• Skin cancer (melanoma): Misdiagnosis of melanoma vs. benign nevi, and misgrading (Breslow depth). [Link to: /misdiagnosis/skin-cancer-misdiagnosis]
• Colon cancer: Misdiagnosis of polyps vs. invasive cancer, and failure to assess depth of invasion. [Link to: /misdiagnosis/colon-cancer-misdiagnosis]
• Lung cancer: Misclassification of small cell vs. non-small cell lung cancer, and misclassification of adenocarcinoma vs. squamous cell carcinoma.
• Lymphoma: Misclassification of lymphoma subtypes, which have very different treatment approaches and prognoses. [Link to: /misdiagnosis/leukemia-lymphoma-misdiagnosis]
• Thyroid cancer: Misdiagnosis of thyroid nodules on fine-needle aspiration (FNA) biopsy.

When Pathology Errors Constitute Medical Malpractice

A pathology or biopsy error constitutes medical malpractice in New York when a pathologist deviated from the accepted standard of care and that deviation caused harm. This includes:

• The pathologist missed cancer that was present in the tissue (false negative).
• The pathologist diagnosed cancer when it was not present (false positive).
• The pathologist misclassified the type of cancer.
• The pathologist misgraded the cancer.
• The pathologist failed to accurately assess depth of invasion or margins.
• The pathologist failed to perform necessary special studies (immunohistochemistry, flow cytometry, molecular testing).
• The tissue was not properly handled, processed, or sectioned.
• The tissue was mislabeled.
• The deviation caused harm -- delayed treatment, unnecessary treatment, disease progression, or death. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]

Proving Your Pathology Error Case

To prove a pathology error case, we:

• Obtain the pathology report: Including the original pathology report and any addenda or corrected reports.
• Obtain the actual slides: We obtain the actual tissue slides (not just the report) so that an independent pathologist can re-examine them. This is the most critical step in a pathology error case.
• Obtain the tissue blocks: We obtain the paraffin-embedded tissue blocks, which allow the independent pathologist to cut new sections and perform additional special studies (immunohistochemistry, etc.).
• Engage expert review: We work with board-certified pathologists (and, when appropriate, subspecialty pathologists such as hematopathologists, dermatopathologists, or neuropathologists) who practice in New York to independently review the slides and blocks.
• Establish the standard of care: We determine what the standard of care requires for the type of pathology at issue.
• Establish causation: We prove that the pathology error caused harm. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]

Lavern's Law and Your Deadline to File

Pathology error cases involving cancer are subject to Lavern's Law:

• You have 2.5 years from the date you discovered (or should have discovered) the pathology error to file a lawsuit.
• There is an absolute outer limit of 7 years from the date of the negligent act (the date the pathologist issued the report). [Link to: /misdiagnosis/laverns-law]
• If the pathology error caused death, a wrongful death claim must be filed within 2 years of the date of death. [Link to: /wrongful-death/statute-of-limitations]

Compensation Available

A successful pathology error claim can provide compensation for:

• Medical expenses: Including past and future surgery, chemotherapy, radiation, and medications -- including treatment for unnecessary procedures caused by a false positive
• Lost wages and lost earning capacity: For time missed from work and reduced ability to work
• Pain and suffering: NY has no cap on non-economic damages
• Reduced life expectancy: For the loss of years of life due to delayed diagnosis
• Wrongful death damages: If the pathology error caused death [Link to: /wrongful-death/settlements]

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.