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.
The family of Marine Sgt. Carmelo Rodriguez says military doctors misdiagnosed his skin cancer. Now, as CBS News correspondent Byron Pitts reports, they want the U.S. government held accountable for his untimely death.
Last week the Senate conducted hearings into the deaths of American soldiers in Iraq due to the negligent installation of electrical wiring by employees of Halliburton KBR. (View Article at ArmyTimes.com)
Testimony by former KBR employees substantiated the gross conduct of that company in performing its responsibilities under contracts with the Army Corps of Engineers.These incidents raise the interesting legal question of whether Halliburton KBR can be held legally liable for the death and injury of active duty soldiers resulting from its negligence.
It is well established that active duty soldiers cannot sue the government for injuries or death sustained incident to their service.That prohibition, however, does not apply to independent contractors working for the government such at Halliburton KBR.Such contractors are bound by the same rules as all non-governmentalentitiesand must exercise reasonable conduct in the performance of its duties to those who foreseeable could be injured by their negligence.
Bottom line—while the United States cannot be sued by an injured soldier, an independent contractor such as Halliburton KBR can.Such an action would have to be filed in Texas federal courtwhere Halliburton KBR has its corporate headquarters.The biggest obstacle to bringing such an action is the need to do so in a timely manner before the statute of limitations runs.
An action against Halliburton KBR can be pursued even if the soldier or his family has already received government benefits arising out of his/her injury or death.Of particular note is that government benefits do not compensate a soldier or a soldier’s family for such injuries as pain, suffering, and loss of society.No such limitation exits regarding a claim against an independent contractor.
If you or a loved one has been seriously injured as a result of electrical hazards in Iraq, you are encouraged to contact our military medical malpractice law firm for a free consultation.
Over the years I have represented numerous patients whose cancer was not timely diagnosed in military or VA hospitals, and who subsequently suffered damages as a result. Such cases are very demanding because cancer, as we all know, can be a deadly disease if not timely diagnosed and treated. The legal challenge in such cases is to prove that government health care providers failed to diagnose the cancer and that such failure resulted in damages to the patient. In many cases the military/VA doctor may have been negligent but the negligence did not effect the ultimate outcome. For example, if a doctor ignores the lump in a woman’s breast and two months later another doctor performs a biopsy of that lump and determines it to contain cancer, there will be no damages, and therefore no case, if the cancer is Stage I. Why? Because the two month delay made no difference in the ultimate outcome–the cancer two months earlier was obvioulsy Stage I and the treatment required to treat the cancer had not changed. However, if 18 months had passed before the cancer was diagnosed, and if the cancer had advanced to Stage III with involvement of lymph nodes, then a viable malpractice case could exist. In this instance the patient would have sustained substantial injuries because her life expectancy would have statistically diminished and the treatment required to deal with her cancer would also have changed. For instance, she likely would now require the removal of her entire breast and not simply the cancerous lump. She would also require chemo and radiation therapy which otherwise might not have been necessary. She also would probably be prevented from working or performing household duties while she underwent these treatments. These damages are significant and worthy of pursuing in a tort claim.
If you or a member of your family is diagnosed with cancer and you believe your military/VA doctors were negligent, please contact our firm, the Military Medical Malpractice Legal Network. We can assess your treatment and determine whether you were the victim of substandard care and whether that negligent care resulted in damages for which you are entitled to compensation. It is important that you consult an attorney shortly after your diagnosis so as not to allow the statute of limitations to run out. Timely attorney consultation will also insure that all necessary records are secured before they are lost, misplaced, or altered.
Anyone who receives care at a military or VA hospital can’t avoid noticing that there are plenty of folks working in those facilities who are not government employees. Of course, that is easier to detect in a military hospital where active duty personnel usually wear military uniforms. However, even in VA hospitals where most everyone is a civilian, there are a large number of health care providers who are not government employees. Why is this important? Because if you are injured as a result of the negligence of an independent contractor, the United States is not responsible for any damages you may incur. In such a case you must sue the independent contractor and/or his employer to obtain compensation. This will usually complicate things significantly. Let me give you an example. Our firm recently represented the family of an active duty sailor whose wife received her care at a Navy primary care clinic in California. That clinic was operated by the Navy but staffed by civilian doctors and nurses provided by by a private company. Over the course of two years the patient was seen by numerous doctors and nurses for various primary care needs. No one, however, ever obtained a family history from the patient which would have notified them that the patient, who was 42, was at high risk for colon cancer because her father had died of the disease when he was 48. In fact, the patient on several occasions requested a colonoscopy because of her high risk, but her requests were always ignored. Her husband was eventually reassigned to Arizona where she presented to an Air Force hospital with abdominal problems. Tests demonstrated that the patient was suffering from Stage IV colon cancer. Despite treatment, the patient died about one year after being diagnosed.
Our firm filed a claim against the Navy under the Federal Tort Claims Act. Upon receipt of the medical records we determined that civilian doctors had treated this lady at the Navy clinic. We therefore filed a law suit against the doctors and the civilian company that employed them. When the six month FTCA administrative claims period had run, we joined the United States to our suit. This was all very tricky since California law provides a one year statute of limitation to bring a medical malpractice suit while the FTCA allows two years. Had we missed the California statute of limitations, the sailor and his family would have been barred from suing the civilian doctors.
As things turned out, the Navy blamed the civilians for not properly treating this patient and the civilians blamed the Navy. Both of them, of course, blamed the patient who was dead. After over a year of discovery, both the United States and the civilian company settled with the family.
This case demonstrates how important it is to pursue a claim in a timely manner and to secure the services of a firm which has the experience and resources to take on both the government and a large corporation simultaneously.
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The Military Medical Malpractice Blog is operated by the Military Medical Malpractice Legal Network, a team of former military attorneys dedicated to representing victims of medical negligence arising out of military and VA hospitals worldwide. If you believe you have a military medical malpractice claim, please contact us for a free consultation.
