Stewart L. Cohen
Whether in the courtroom or the community, Stewart L. Cohen...
Cancer is a deadly disease. However, when cancer is caught early on and treatment begins immediately, the chances of surviving cancer are much greater compared to when the cancer is discovered at an early stage. Because of how fast cancer can proliferate – potentially leading to spread and harm that is irreversible – diagnosing cancer as soon as symptoms present themselves is essential.
Unfortunately, doctors do not always take the steps necessary to ensure that cancer is diagnosed and that patients get the treatment that they need. This delay in diagnosis and treatment can have catastrophic – and even fatal – effects for the patient.
At the law offices of Cohen, Placitella & Roth, P.C., we believe that every patient deserves access to high quality medical care, including a doctor who takes the steps necessary to properly diagnose cancer. When failure to diagnose leads to harm, our law firm will be by your side to investigate your case and determine whether or not malpractice occurred. If it did, we will fight tirelessly for you and your family to get you the compensation that you deserve.
We have a reputation of excellence and trust in the community that we serve, and have represented dozens of clients in successful claims. We have been serving our community for more than 40 years, and care about helping those who need our services the most.
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Recovery for a young woman who suffered a stroke as a result of a failure of proper diagnosis.
A doctor may fail to diagnose nearly any type of cancer, although some missed diagnoses are more common than are others. Some of the most serious, and most common, types of diagnosis failures involve the following cancers:
Breast cancer is a terrible disease, but the survival rate when cancer is diagnosed early is high - the American Cancer Society reports that the five-year survival rate for women with stage 0 or stage I breast cancer is nearly 100 percent. In fact, the five-year survival rate for stage II breast cancer is 93 percent. Sadly, once breast cancer develops to stage IV, the survival rate drops to 22 percent. Early symptoms of breast cancer include swollen nipples or breasts, dimpling, redness or scaliness, or nipple discharge. These symptoms may be dismissed as an infection, rash, allergic reaction, or other innocuous health condition, leading to a failed diagnosis.
After skin cancer, prostate cancer is the most common type of cancer to affect men. The signs of prostate cancer include erectile dysfunction, blood in urine, pain in the hips and spine, loss of bladder or bowel control, and weakness and numbness in the legs and feet. These symptoms resemble a number of other symptoms from different conditions, including kidney disease. Like breast cancer, the survival rate for prostate cancer is nearly 100 percent when the cancer is caught early on, but quickly dips the longer the cancer is allowed to spread throughout the body.
Colon cancer, also known as colorectal cancer, affects about 95,500 new patients every year, and is one of the most commonly diagnosed cancer types in the states. The cancer is characterized by belly pain, blood in stool, cramping, diarrhea or constipation, and unintended weight loss. The cancer is commonly misdiagnosed because it shares the signs of a number of other different conditions, like colitis, irritable bowel syndrome, and even food intolerances. Once the cancer has spread to other parts of the body, the relative five-year survival rate is only 11 percent.
There are different types of lung cancer (non-small cell, small cell, and lung carcinoid tumor), all of which may be improperly diagnosed by a doctor. Lung cancer may be undiagnosed for months, as its early symptoms mimic that of a common cold or respiratory infection, including hoarseness of the throat, shortness of breath, weakness, fatigue, a persistent cough, and pain in the chest. Sometimes, coughing up blood accompanies these symptoms. According to the American Lung Association, the five-year survival rate when cancer of the lungs is localized is about 55 percent, but only 16 percent of lung cancers are diagnosed at an early stage.
In a given year, the American Cancer Society estimates that about 12,800 new cases of cervical cancer will be diagnosed. Sadly, this type of cancer is a common cause of cancer death amongst women, although improved diagnosis of the cancer could combat this. In fact, when detected early, the five-year survival rate is above 90 percent. Women who are suffering from the symptoms of cervical cancer may dismiss them as normal, or ask their doctors about them, who may do the same. Once the cancer has grown into nearby tissues, symptoms include abnormal vaginal bleeding, pain during intercourse, and unusual discharge.
Ovarian cancer is one of the deadliest cancer types amongst women. The symptoms of this cancer vary depending upon the woman, and resemble symptoms of a number of other health conditions, many of which may not be severe. Symptoms include bloating, pelvic pain, having to use the restroom often to urinate, back pain, fatigue, changes to one’s menstrual cycle, weight loss, and constipation.
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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 for 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 affect 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 the cancer that they actually have. When a cancer is misdiagnosed you often hear talk of what stage the cancer was at when it was finally properly diagnosed and what stage the 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 Four: During this final stage the 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 with. 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 similarly 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 she 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 tasked to be completed properly and in a timely manner.
As you can probably guess, these is no clearcut 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 the 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 an 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 indicate 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 other healthcare provider) acted negligently when diagnosing the patient, 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 a 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.
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 of 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 both fail to detects 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 the 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, you 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 a 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 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:
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 that 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 imposes 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 has 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:
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 as of that point in time. During this conversation the doctor should discuss a variety of different topics including; whether or not the disease is fatal, and 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 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.
The American Cancer Society (ACS) is the premier U.S. health organization that aims to fight cancer by raising awareness and educating people about the disease. ACS hosts a website dedicated to providing information and statistical data about various forms of cancer, which includes the following information.
The likelihood that some Philadelphians with cancer will not be properly diagnosed is a near certainty.
Stewart L. Cohen
Whether in the courtroom or the community, Stewart L. Cohen...
Christopher M. Placitella
Mr. Placitella has developed an award-winning reputation for his commitment...
Harry M. Roth
Mr. Roth also represents individuals, government entities, and companies seeking...