Failure to Diagnose Cancer
By: Attorney, Peter C. Gordon
One of the most common claims in medical malpractice cases is an alleged failure to timely diagnose cancer.
As with all medical malpractice cases it is necessary to prove several elements. The first, and most obvious is that the particular physician failed to comply with accepted medical standards. In a cancer case this typically involves a factual scenario where the physician has failed to thoroughly investigate the patient’s complaints or presenting symptomology. The particular criticism is generally that physician failed to order additional testing such as specific blood work, imaging studies or referral to a medical specialist.
The second aspect of a cancer malpractice case is the need to establish causation between the delayed diagnosis and treatment and the negative impact caused on the patient’s prognosis, treatment options, or ability of therapy to as effectively deal with the cancer. In the end, it must be established that the patient probably lost the opportunity for a better long term outcome or quality of life. This means both longevity or the problems with which the patient now has to deal, as a result of the improper diagnosis or delayed treatment.
The medical literature is replete with statistics as to 5 and 10 year survival rates, depending on what stage that particular cancer is diagnosed and treated. This is all based upon statistics developed at various medical institutions, as to the statistical impact of different treatments or earlier treatment. In pursuing a failure to diagnose cancer case, it is essential to research and investigate the available medical literature to determine the impact that an earlier diagnosis and treatment would probably have been.
Two of the most common types of cancer malpractice cases involve breast cancer or lung cancer.
In a typical breast cancer, case the physician would be criticized for failure to do a proper breast examination or to adequately respond a patient’s breast complaints or respond to a palpable lump. Another common scenario deals with the radiologists’ interpretation of mammography films. These usually mean a failure to appreciate, point out or follow up on abnormal findings. It sometimes involves the failure of the referring gynecologist to follow up on the radiologists’ reported findings, in view of the patient’s original presenting symptoms or complains. As in most types of cancer litigation, it is essential to prove that the deviation caused the cancer to either to worsen as to type or to spread, resulting in a change in available treatment or a reduction of the likely impact of treatment in terms of improving the prognosis.
In cases involving lung cancer, the allegations are generally that the physician failed to address complaints such as coughing up blood, difficulty breathing or chest pain. Very often the specific criticism in lung cancer malpractice cases is the physician’s failure to order an imaging study such as a simple chest x-ray.
By law, a physician is only responsible for that portion of damage or injury that can be attributable to the act of negligence. The most common defense in these malpractice cases is that an earlier diagnosis would not have made a provable difference in the ultimate outcome. It is essential in breast and lung cancer cases to establish by way of medical literature and studies, as well as expert testimony, that the cancer advanced from one stage to another, reducing the statistical likelihood of a the positive impact of proper therapy on long term survival.
In the end the argument must be brought home that the one thing we know results from lost time, in diagnosing and treating the cancer, is the increased opportunity of likelihood for the shedding or spreading of cancer cells to other parts of the body. This delay also can create a worsening of the type of cancer, against which proper therapy has to battle. It is the medical malpractice attorney’s obligation to highlight and establish the delay in diagnosis, the delay and treatment and the likely impact of a worsening of the tumor burden that the available treatment must now overcome.
About the Author
Peter Gordon is a medical malpractice attorney who has been representing injured plaintiffs in New Jersey medical malpractice cases involving cancer.
Learn more about Medical Malpractice.
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