FAILURE TO DIAGNOSE CANCER:
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For many individuals who have cancer, a timely and correct diagnosis can quite literally mean the difference between life and death. Unfortunately, not all cases of cancer are detected and properly diagnosed in a timely manner. There are numerous reasons why this is the case, but two causes that frequently become the basis of medical malpractice cases in the United States are delayed diagnoses and failures to diagnose.

A “delay in diagnosis” of cancer occurs when a particular case of cancer could have been properly diagnosed sooner than it was but a healthcare provider’s failure to timely perform a test or procedure that could have resulted in an earlier diagnosis. However, if the healthcare provider fails to properly diagnose the cancer patient altogether then that patient has been subjected to a “failure to diagnose”, rather than a delay in diagnosis.

Individuals with cancer can suffer greatly from either a delay in diagnosis or a failure to diagnose as both mistakes can easily cause the sick person to miss out on treatment that they desperately need. Because medical mistakes such as delay in diagnosis and failure to diagnose can greatly harm individuals with cancer these mistakes often become the basis of future lawsuits, however, it is important to note that not every medical mistake can be the basis of a medical malpractice claim.

A cancer misdiagnosis can undoubtedly have a huge effect on anyone. Someone who does not have cancer and is told that they do may be emotionally traumatized and even undergo invasive treatments that they do not need. Additionally, someone who does have cancer and is mistakenly told that they are either cancer-free or that they suffer from a type of cancer that they do not in reality have may lose valuable time due to this misdiagnosis.

Many cancers are highly aggressive, can quickly spread throughout the body if left untreated, and become more challenging to defeat as time goes on. Therefore, misdiagnosed cancer patients may lose valuable time that could have otherwise been spent treating cancer that they actually have. When cancer is misdiagnosed you often hear talk of what stage the cancer was at when it was finally properly diagnosed and what stage cancer likely would have been caught at had the patient been properly diagnosed in the first place. The cancer staging systems used by medical professionals differ based on the type of cancer that is being talked about, but most cancers have the following four stages:

• Stage One: During this initial stage the cancer is relatively small and is contained within the organ where it originated.
• Stage Two: Cancers in this stage have generally not yet started to spread into surrounding tissue, but at this stage, the tumor is larger than it was in stage one and, in some instances, cancer cells have spread into the lymph nodes close to the tumor.
• Stage Three: At this stage, cancer has grown again, has spread into the lymph nodes in the surrounding area, and may have spread into surrounding tissues.

Stage Four: During this final stage cancer has spread from the organ in which it originated into another body organ.

One key question that is asked in medical malpractice cases is whether or not the patient’s doctor breached the professional standard of care that they were required to treat their patient. The answer to this question is extremely important because only doctors who have failed to provide the required standard of medical care can be held liable in a medical malpractice lawsuit. The applicable standard of care is determined based on what a similar situation doctor would have reasonably been expected to have done given the circumstances.

When it comes to detecting cancer there are a number of precautionary procedures that doctors are expected to engage in so that he or they can properly determine if a patient’s symptoms are caused by cancer. For example, doctors are expected to ask the patient are variety of preliminary questions about their medical history and lifestyle, perform adequate physical examinations, and conduct tests that are warranted by the information that they have gathered in order to help determine the underlying cause of the patient’s ailments. Additionally, professional standards of medical care require these tasks to be completed properly and in a timely manner.

As you can probably guess, there is no clear-cut checklist that can indicate whether or not a particular doctor did everything that the standards of medical care required him or her to do. Each case is slightly unique, and determining whether a doctor breached their requisite professional standard of care is often an issue that is hotly debated in court via the use of expert witnesses who testify as to what the medical community would have expected a similarly situated doctor to have done give the circumstances.

We would need to know more about this case before being able to fully answer this question. Just because an individual is diagnosed with late-stage cancer does not necessarily mean that medical malpractice prevented them from being diagnosed and receiving treatment in a timely manner. For instance, it is entirely possible that someone with cancer could experience no or mild symptoms while the cancer is in its early stages and therefore not even seek medical attention until their symptoms worsen and cancer enters a late stage.

However, it is also fully possible that a late-stage cancer diagnosis could have been issued sooner if not for a healthcare provider’s medical malpractice. Medical malpractice occurs when a doctor’s negligent actions cause their patient actual harm. In cancer medical malpractice lawsuits involving a diagnostic error, the case generally hinges on whether or not the doctor was negligent. Misdiagnosis or delayed diagnosis are not by themselves sufficient to prove that a healthcare provider acted negligently. In order to prove negligence in a medical malpractice case, the plaintiff must show that the defendant did not provide treatment in a reasonably skillful and competent manner. For example, in the case of a late-stage cancer diagnosis against a treating physician, the element of negligence may be met if the doctor failed to use an appropriate differential diagnosis method when diagnosing the patient.

Cancer victims who were not properly diagnosed may have a few legal recourses available to them. For example, if their misdiagnosis was the product of negligence then they may be able to initiate a medical malpractice lawsuit not only against the doctor who improperly diagnosed them but also against any other responsible party. Other responsible parties may include the hospital where the patient was treated, physicians or specialists who consulted on the diagnosis, and the lab that interpreted the patient’s test results, just to name a few. Be aware that medical malpractice cases can legally be brought against most licensed health care professionals/entities. Also, keep in mind that each misdiagnosis case is unique and that therefore it is critical that you consult with an experienced medical malpractice attorney for case-specific information and to discuss your legal options.

Unfortunately, cancer misdiagnosis rates are quite high. However, it is important to be aware that statistics about rates of cancer misdiagnosis are not entirely consistent with each other, perhaps because many cases of cancer misdiagnosis go unreported as physicians fear being sued, and that the statistics that we do have are largely based on the number of cases that are reported.

Current misdiagnosis of cancer statistics indicates that somewhere between 10 and 20 percent of all cancer cases are misdiagnosed. Furthermore, it is estimated that approximately 28 percent of these misdiagnoses are classified as either life-threatening or life-altering. Based on these numbers, researchers estimate that 40,000 or so cancer patients die each year due to either a delayed diagnosis or a misdiagnosis.

No, not all diagnosis errors can lead to a viable medical negligence claim because the law does not hold doctors and other healthcare providers legally liable for every diagnosis error. Medical negligence claims can only succeed in court if the plaintiff (i.e. the person suing) can prove that the defendant doctor (or another healthcare provider) acted negligently when diagnosing the patient, and that this negligence caused the defendant to fall below the standard of care legally required of them, and that the defendant’s negligence harmed the plaintiff in some compensable way.

For example, if after diligently examining, questioning, and testing a patient a doctor determines that the patient has an infection in their lungs, this doctor would likely not be held legally liable if it turns out that the patient actually had lung cancer rather than an infection. If the doctor can show that his actions complied with the standards that the medical profession expects a reasonable doctor to comply with, then the misdiagnosed patient will likely not be able to show that the doctor acted negligently (and will therefore not be able to win a medical negligence lawsuit against the doctor). However, if the medical profession expects similarly situated doctors to take a lung biopsy before diagnosing the patient, and this doctor failed to do that biopsy, then the patient may be able to show that the doctor acted negligently and should therefore be held liable for their diagnostic error.

Cancer diagnosis errors happen in a variety of different ways, however some of the most common diagnostic errors that doctors and other medical professionals make are listed below.

• Delayed Diagnosis: An extremely common type of diagnostic error is delayed diagnosis. A delayed diagnosis occurs when a doctor eventually is able to correctly diagnose their patient but is only able to do so later than they optimally could have because they failed to timely perform a test or procedure that would have resulted in a more timely diagnosis.
• Misdiagnosis: A misdiagnosis, or a wrong diagnosis, generally occurs when a doctor mistakenly tells a patient that they have the wrong illness. For example, when a doctor tells a patient that they have illness A when in reality the patient instead is suffering from illness B, a misdiagnosis has occurred.
• Missed Diagnosis: A missed misdiagnosis is similar to a misdiagnosis in that in both situations the doctor gives the patient an incorrect diagnosis, however, a missed diagnosis occurs when the doctor wrongly tells a patient that they have a clean bill of health when in fact they are suffering from an illness or disease.
• Failure to Recognize Complications: This type of diagnostic error happens when a doctor correctly diagnoses their patient but fails to recognize and treat complications that ultimately aggravate the patient’s condition.
• Failure to Diagnose an Unrelated Disease: A doctor fails to diagnose an unrelated disease when he or she correctly diagnoses one or more of a patient’s diseases but fails to identify another unrelated disease that the patient is also suffering from.

Cancer can be very challenging for physicians to properly diagnose because some of the most common forms of cancer have symptoms that closely mimic symptoms associated with other diseases. Because of this deceptive attribute, delayed diagnosis errors are very common in cancer cases. According to the Journal of the American Medical Association, delayed diagnosis errors in cancer cases are most common in lung cancer, breast cancer, and colon cancer cases. In fact, it is reported that these three types of cancers alone account for approximately 10 percent of all physician-reported misdiagnosis errors.

Lung cancer is a particularly hard cancer to diagnose because many bacterial and fungal infections look very similar to malignant lung cancer tumors on an X-ray. This causes some lung cancer patients to be wrongly diagnosed with an infection while, conversely, some infected patients are misdiagnosed with lung cancer.

Breast cancer is the most common form of cancer with approximately 230,000 diagnosed cases each year in the United States alone. However, medical professionals who conduct breast biopsies often fail to detect cancers in the tissue sample as well as mistakenly believe that a sample contains malignancies when there are not any.

Colon cancer can be challenging to detect in the earliest stages of the disease because at this stage there are often no symptoms of cancer. Additionally, colon cancer sometimes is misdiagnosed as simply being hemorrhoids because these two diseases have very common symptoms. These factors together make delayed diagnoses very common in colon cancer cases.

If you suspect that you were the victim of a diagnosis error it is very important that you first take care of your health and then consider your legal options. If you have not yet been properly diagnosed, or suspect for some reason that your current diagnosis is wrong, the first thing that you should do is seek a second, or even a third, opinion from a qualified medical professional. As mentioned above, time is often very much of the essence when it comes to cancer diagnoses and it is imperative that you get properly diagnosed as soon as possible so that you can start receiving the medical care that you need ASAP. Remember, your health is the number one priority, and working to get properly diagnosed and treated should be the first item on your to-do list.

After your medical needs have been attended to, you can then consider your legal options. If you suspect that you were the victim of a diagnosis error, feel free to discuss your legal options with an experienced medical malpractice attorney. Here at the law firm of Cohen, Placitella & Roth, P.C. we offer prospective clients a free initial consultation, so if you are considering pursuing a medical malpractice claim based on a cancer diagnosis error feel free to contact our office to schedule your no-obligation consultation today.

If you lost a loved one due to a cancer misdiagnosis we are very sorry for your loss. While you likely have many pressing issues to attend to in the wake of your loved one’s passing, one matter that you should consider is whether or not you would like to file a wrongful death lawsuit against the doctor(s) and/or the hospital that was responsible for the misdiagnosis.

But what exactly is a wrongful death lawsuit? A wrongful death lawsuit is a claim filed by the surviving family members of a deceased individual who died as a result of someone else’s negligence or unlawful intentional act. Wrongful death cases arise under a number of different circumstances and frequently are filed when a patient dies as a result of medical malpractice. These claims enable the family/estate of the deceased to recover the same damages that the misdiagnosed patient would have been able to recover if he or she had survived and had pursued a successful medical malpractice lawsuit, plus additional damages for funeral expenses and financial support for family members who were dependent on the deceased.

In most wrongful death cases, the lawsuit can only be filed by the deceased individual’s closest surviving relatives (for example, their spouse, child, or parent). However, it is important to note that wrongful death lawsuits are governed by state law, and therefore eligibility requirements regarding who can file a wrongful death lawsuit differ a bit from state to state.

If you have decided to file either medical malpractice or wrongful death claim based on a cancer diagnosis you will almost always need medical experts to help prove your case. Medical experts are critical in cancer diagnosis cases because these cases are always extremely technical in nature. Additionally, plaintiffs in these cases must generally use a medical expert to prove that a healthcare provider failed to meet the standard of care that is required of similarly situated medical professionals given the circumstances surrounding the diagnosis.

Locating and hiring the right medical expert is extremely important because this expert witness will play a critical role in your case by testifying as to what steps, in his or her expert opinion, should have been taken in order to properly diagnose the patient in this case. This testimony will be compared to the steps that the defendant’s doctor or healthcare provider actually took in order to determine whether or not the defendant failed to meet the standard of care that was required of them. This may sound fairly straightforward, but keep in mind that the defendant(s) will also produce medical experts of their own to testify and that the testimony of these experts may very well differ from the testimony of your expert witnesses. Therefore, it is very important to hire medical experts who can explain their professional opinions in a clear and convincing manner.

The best way to locate medical experts who can help with your cancer diagnosis claim is via your lawyer. An experienced medical malpractice lawyer will be able to evaluate your case, determine what type of medical expert would be most beneficial to retain given the facts of your case and locate competent and qualified medical experts for you.

As mentioned above, cancer misdiagnoses often form the basis of medical malpractice claims filed against doctors. However, it is important to keep in mind that not all diagnosis errors lead to a viable medical negligence claim because the law does not hold doctors legally responsible for all diagnostic errors. Doctors can only be held legally liable for diagnostic errors in which the following three elements are satisfied:

1. A doctor-patient relationship existed between the doctor who is being sued and the patient who was misdiagnosed,
2. The doctor acted negligently in determining the patient’s diagnosis, and
3. The doctor’s negligence actually injured the patient.

However, even if a misdiagnosed patient is able to prove all three of the elements listed above, they may still not be able to take legal actions against the doctor who negligently misdiagnosed them if they wait too long to file their claim. Each state has a “statute of limitations” that limits the timeframe within which injured patients can file a medical malpractice claim against the healthcare provider who negligently harmed them. For example, both New Jersey and Pennsylvania impose a two-year statute of limitation on medical malpractice claims filed within either state. Patients who attempt to file a medical malpractice claim outside of this prescribed timeframe will generally have their claims dismissed by the court. Therefore, if you are considering filing a medical malpractice claim contact an experienced attorney without delay in order to best avoid having your case barred by a statute of limitations.

The effectiveness and variety of cancer treatments that are available in the United States have greatly improved over the past several decades. We now have many different approved types of cancer treatments on the market. However, the types of cancer treatments that are available to a particular cancer patient is highly dependent on which type of cancer they have and what stage their cancer is currently at. With that said, the National Cancer Institute reports that the main types of cancer treatments available today include:

• Surgery: Via surgery, some types of cancers can be physically cut out and removed from the body. Surgical techniques have become much more sophisticated over the past few years and surgeons can now perform operations not only by cutting into the body with a scalpel, but also via cryosurgery, lasers, hyperthermia, and photodynamic therapy.
• Radiation Therapy: Radiation therapy (also referred to as radiotherapy) can treat some forms of cancer by administering high doses of radiation aimed at killing cancer cells and shrinking cancerous tumors. Radiation therapy is used to both cure cancer as well as to ease a cancer patient’s symptoms.
• Chemotherapy: Chemotherapy is a form of cancer treatment in which drugs are used to kill cancerous cells. Chemotherapy drugs can be administered in a variety of different ways including orally, intravenously, and topically.
• Immunotherapy: Immunotherapy treats cancer by helping the patient’s own immune system fight back. There are various types of immunotherapy available on the market, but many of them operate based on the premise that cancer cells are able to survive because they can hide from the body’s immune system. Immunotherapies work to expose hiding cancer cells by marking them and thereby making it easier for the body’s immune system to find and destroy them.
• Targeted Therapy: Targeted cancer therapies operate by identifying and targeting the changes in cancer cells that help them grow, divide, and spread. By targeting these changes doctors are able to design therapies to block both the changes and their effects.
• Hormone Therapy: There are two main types of cancer hormone therapy: those that block the body’s ability to produce hormones, and those that interfere with how already existing hormones behave in the body.
• Stem Cell Transplant: Stem cell transplants are used to restore blood-forming stem cells in cancer patients who have had theirs destroyed by cancer treatments such as chemotherapy and radiation.

A medical prognosis is simply a prediction of the likely development and outcomes of a disease based on a knowledge of the laws and pathological processes of the disease. When an individual is diagnosed with cancer, their doctor will sit down with them and explain the patient’s medical prognosis at that point in time. During this conversation the doctor should discuss a variety of different topics including; whether or not the disease is fatal, if so how long the patient is expected to live, as well as what the progression of the disease will likely be if left untreated. Doctors determine the medical prognosis in a particular case based on many different factors including outcome statistics, the frequency and nature of associated complications, the average duration of the disease, the accuracy of the diagnosis, and the patient’s overall health and age.

Along with delivering the medical prognosis a doctor should also explain the treatment options that are available, discuss the effectiveness and risks associated with each option, and recommend a particular course of action to the patient.

In order to win a cancer misdiagnosis or medical malpractice claim, the misdiagnosed patient must be able to prove that they were harmed in some way by the misdiagnosis. In other words, the patient must be able to show that their doctor’s negligent misdiagnosis caused their illness to progress beyond where it normally would have had a correct diagnosis been given in a timely manner. Additionally, the patient must also show how the unnecessary progression of their illness negatively impacted their treatment or their well-being. For example, if a negligent misdiagnosis caused a cancer patient’s illness to metastasize to a stage where it is no longer treatable, then the patient should be able to show via expert medical testimony that the misdiagnosis did a great deal of harm by negatively impacting the patient’s treatment options. However, misdiagnosed patients who are still above to receive treatment can also prove that their misdiagnosis harmed them in some way. For instance, they may be able to show that because their proper diagnosis was delayed they must now undergo a more severe type or dosage of cancer treatment than they otherwise would have had to.