Court dismisses wrongful death claim because of patient's actions

A lawsuit regarding the wrongful death of a Louisiana cancer victim was summarily dismissed with prejudice. That means the plaintiff is barred from bringing the case again.

The plaintiff's expert witness was found to be lacking. However, the larger part of the decision seems to be tied directly to the actions of the victim herself before her death.

The woman's widow and daughter filed suit after her death in 2015. During an autopsy, it was determined that she had breast cancer that had metastasized.

Her survivors filed a survival action, a wrongful death claim and a claim for lost-chance-of-survival against a doctor and nurse practitioner under the Federal Tort Claims Act for negligence because she had seen them several times in the years prior to her death for a variety of physical complaints. They had failed to diagnose her condition.

Unfortunately, the evidence in the case showed that both the doctor and the nurse practitioner had advised their patient to have a Pap test and a breast cancer screening on more than one occasion. They also noted that they advised her of the dangers of not doing so. The woman did not follow through on their advice, despite repeated statements that she would. She skipped at least one mammogram screening.

Nobody likes to think about an outcome like this for a wrongful death lawsuit -- and it's highly likely that her family wasn't aware that the victim had been warned about the danger of avoiding testing until her medical records surfaced.

This case is a stark reminder that doctors cannot be held liable when a patient doesn't comply with their recommendations -- which is why it's always important to go through recommended testing (even if you find it unpleasant or uncomfortable). It may be the best way to protect yourself, your family and your future.

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Vincent J. DeSalvo, Attorney at Law
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