Melanoma Misdiagnosed as a Benign Mole: Oregon Law

Melanoma is a serious skin cancer that can look like an ordinary mole. The American Cancer Society notes that it is sometimes hard to tell the difference between melanoma and an ordinary mole.¹ When melanoma is mistaken for a harmless mole and left alone, the delay can matter a great deal. This article explains how melanoma is supposed to be caught, where mistakes happen, and what Oregon law says about a delayed diagnosis.

The ABCDE warning signs

The ABCDE rule is a guide for spotting moles that may be melanoma. The American Cancer Society describes it this way: Asymmetry, where one half of a mole does not match the other; Border, where the edges are irregular, ragged, notched, or blurred; Color, which is not the same all over and may include different shades of brown or black, or patches of pink, red, white, or blue; Diameter, where the spot is larger than 6 millimeters (the size of a pencil eraser) across, although melanomas can sometimes be smaller than this; and Evolving, where the mole is changing in size, shape, or color.¹ A spot that is new, changing, itching, bleeding, or not healing is a reason to look closer.¹

How melanoma is diagnosed

Looking at a spot is only the first step. If a doctor thinks a spot might be melanoma, the suspicious area is removed and sent to a lab to be looked at under a microscope. This is called a skin biopsy.² For a spot that might be melanoma, an excisional biopsy, which removes the whole growth with a small margin of normal skin, is usually the preferred method.²

Once the sample reaches the lab, a pathologist — often a dermatopathologist, a doctor with special training in reading skin samples — looks at it under a microscope for melanoma cells.³ This step is how the lab looks for melanoma and, if it finds it, measures how deeply it has grown into the skin; sometimes extra lab tests are needed to confirm the diagnosis.²

Where things go wrong

A missed melanoma can trace back to breakdowns such as these:

• No biopsy of a suspicious lesion. A mole shows ABCDE warning signs, but the provider reassures the patient it is nothing and does not remove it or refer the patient. Because melanoma is confirmed by biopsy, skipping it leaves the cancer undiagnosed.²
• Misread pathology. The biopsy is done, but the sample is misinterpreted and called benign when melanoma cells are present.³
• No follow-up. A mole is noted as changing, but it is never rechecked. The American Cancer Society lists a spot that is changing in size, shape, or color as the most important warning sign of melanoma, along with a new spot on the skin.¹

Why a delay matters so much

Prognosis depends on several factors, including how thick the tumor is, how much cancer is in the lymph nodes, and whether and where it has spread.⁴

The survival numbers show the stakes. The American Cancer Society reports a 5-year relative survival rate of more than 99% for localized melanoma that has not spread beyond the skin, about 76% once it reaches nearby lymph nodes or structures (regional), and about 36% once it has spread to distant parts of the body.⁵ These rates are based on the stage at first diagnosis, so the stage a melanoma has reached when it is finally found matters.⁵

The Oregon standard of care

Oregon law measures a physician's care against a professional standard of care. Under ORS 677.095, a physician licensed by the Oregon Medical Board has a duty to use "that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."⁶

In a missed-melanoma case, that means asking what a careful dermatologist or pathologist would have done with the same mole or the same slide. Would an ordinarily careful provider have biopsied the lesion? Would a careful dermatopathologist have seen the melanoma cells? The question that standard frames is whether the care met it, not whether the result was a good one.

Deadlines under Oregon law

Oregon sets firm time limits for medical-malpractice claims, and a delayed-diagnosis case raises them directly. Under ORS 12.110(4), an action for injuries from medical treatment must be started "within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered."⁷ In Gaston v. Parsons, 318 Or 247 (1994), the Oregon Supreme Court held that "injury," as used in ORS 12.110(4), "consists of three elements: (1) harm; (2) causation; and (3) tortious conduct." The court held that the period "begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists."⁸ This is called the discovery rule. With a missed cancer, the two-year period may not start on the day of the visit, because the patient may have no way to know something was missed until the correct diagnosis is finally made.

There is an outer limit as well. The same statute sets a statute of repose: the claim must generally be filed within five years from the date of the treatment or omission it is based on, no matter when the injury is discovered.⁷ The statute provides that if no action was commenced within five years "because of fraud, deceit or misleading representation," the action may be commenced within two years from the date the fraud, deceit or misleading representation is discovered or reasonably should have been discovered.⁷ Different deadlines can apply in special situations, such as claims involving children or claims against public hospitals, so the exact timing depends on the facts, although for medical claims the five-year limit applies "notwithstanding the provisions of ORS 12.160," the minor-tolling statute.⁷ For a claim against a public body, ORS 30.275 sets its own notice rules. ORS 30.275(9) provides that, except as it lists and "notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action," an action against a public body covered by the Oregon Tort Claims Act "shall be commenced within two years after the alleged loss or injury."⁹

If you are worried that a melanoma was missed or misread, the questions of whether the standard of care was met and which deadline applies are best reviewed by an Oregon attorney, who can look at the specific records and dates.

This article is educational

This article describes Oregon law in general terms. It is not legal advice and does not create an attorney-client relationship.

Time limits matter. Most Oregon personal-injury and auto-accident claims must be filed within two years of the injury or accident. Medical malpractice claims must be filed within two years of when you knew or reasonably should have known of the negligence, with an outer limit of five years from the act itself (with a fraud exception). Wrongful death claims must be filed within three years of the date of death. Claims against public bodies (cities, counties, state agencies, public hospitals) require a notice of claim within 180 days. Missing these deadlines typically ends a case.

If you think you may have a claim, call Huegli Law at 971-317-6436 for a free case review. Todd Huegli is licensed in Oregon and consults on cases in Oregon only.

Footnotes

1. Signs and Symptoms of Melanoma Skin Cancer. American Cancer Society. https://www.cancer.org/cancer/types/melanoma-skin-cancer/detection-diagnosis-staging/signs-and-symptoms.html ↩ ↩² ↩³ ↩⁴

2. Tests for Melanoma Skin Cancer. American Cancer Society. https://www.cancer.org/cancer/types/melanoma-skin-cancer/detection-diagnosis-staging/how-diagnosed.html ↩ ↩² ↩³ ↩⁴

3. Tests for Melanoma Skin Cancer (pathology examination). American Cancer Society. https://www.cancer.org/cancer/types/melanoma-skin-cancer/detection-diagnosis-staging/how-diagnosed.html ↩ ↩²

4. Melanoma Treatment (PDQ) - Patient Version. National Cancer Institute. https://www.cancer.gov/types/skin/patient/melanoma-treatment-pdq ↩

5. Survival Rates for Melanoma Skin Cancer, by Stage. American Cancer Society. https://www.cancer.org/cancer/types/melanoma-skin-cancer/detection-diagnosis-staging/survival-rates-for-melanoma-skin-cancer-by-stage.html ↩ ↩²

6. ORS 677.095 - Degree of care and skill required. Oregon Public Law. https://oregon.public.law/statutes/ors_677.095 ↩

7. ORS 12.110 - Actions for certain injuries to person not arising on contract. Oregon Public Law. https://oregon.public.law/statutes/ors_12.110 ↩ ↩² ↩³ ↩⁴

8. Gaston v. Parsons, 318 Or 247 (1994). Caselaw Access Project. https://static.case.law/or/318/cases/0247-01.json ↩

9. ORS 30.275 - Notice of claim; time of notice; time of action. Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩