Failure to Diagnose Cancer:
One of the most frequent medical malpractice issues that we deal with involves the failure to timely diagnose and treat cancer. Over the years we have successfully prosecuted federal tort claims involving cancer of the breast, lung, prostate, colon, kidney, brain, and many others. An issue that comes up in each case is how much damage was caused by the failure to timely diagnose the malignancy? Unlike a surgical or medication error which is directly caused by a careless health care provider, cancer is virtually never caused by the doctor or nurse involved in the patient’s care. The presence of cancer is the unfortunate consequence of nature. The medical negligence involving cancer is the failure to diagnose the condition in time for it to be successfully treated. Unfortunately, some cancers are so virulent that they are seldom diagnosed in time to successfully treat. Others are simply not amenable to cure despite the best efforts of the medical community. Cancer of the liver and pancreas fall into these categories. Many cancers, however, can be treated, and these are the ones which can result in successful claims when the military or VA health care providers fall short of the mark.
The law requires the injured party (plaintiff) in most tort claims to prove that the negligent act of another was the direct and proximate cause of the plaintiff’s injury. To be successful the plaintiff must present evidence to establish that fact. This requirement always presents a significant challenge in cancer cases. Why? Because a patient’s cancer often has spread to other parts of a patient’s body when the doctor had the first reasonable opportunity to diagnose it. As such, any treatment the patient may receive is not designed to cure the patient but only to provide relief and to perhaps extend the patient’s life by a few months or years. Such cases are seldom successful. On the other hand, if the plaintiff can show by the medical record and expert testimony that more timely diagnosis would have led to treatment that would have cured the patient, then the outcome will be quite different. In the world of cancer treatment “cure” is usually defined as being free of cancer for between five and ten years depending on the particular malignancy. To arrive at an opinion in such cases the expert will refer to the published medical literature on cancer survival rates. This is very sophisticated stuff and only the most experienced oncologists are qualified to address these matters.
Many prospective clients are disappointed to learn that they have no case even though the record reflects that the doctor was clearly negligent. For example, a patient undergoes an x-ray that clearly reveals a mass on the lung. The radiologist failed to identify the mass, and the patient therefore receives no treatment. A month later the patient undergoes another chest x-ray as part of his annual physical. This time the mass is identified. A biopsy proves the lump to be cancer. Further tests, however, demonstrate that the lung cancer has already spread to the patient’s liver. As such. The patient is suffering from Stage IV lung cancer with a dismal prognosis. While the lawyer can prove that the doctor who misread the original x-ray was negligent, he cannot prove that the one month delay had any significant impact on the patient’s treatment or poor prognosis. That is to say, the patient would have needed the same treatment and his condition is terminal. In such a situation it is impossible to show that the patient suffered any significant damages as a result of the negligence. Therefore, there is no viable claim.
In addressing cancer cases, our attorneys always address the issue of causation first, i.e., did the delay in diagnosis make any difference? We consult only the very best doctors in making this decision. If the evidence and the medicine do not support the claim, we forthrightly advise the client of that fact. On the other hand, if the client has a case we prosecute it aggressively. While every case is unique and there are never any guarantees, by using this process we have had tremendous success in resolving virtually every cancer case we have ever filed.
