CANCER MISDIAGNOSIS OR FAILURE TO DIAGNOSE

In other sections of this web site we discuss large cases and medical malpractice cases (Litigating Complex Negligence Cases & Medical Malpractice Basics). Those articles discuss the use of experts in proving:

• The defendant breached the standard of care
• Damages you sustained
• Causation of the damages to the malpractice as opposed to the underlying condition

The biggest issue in cancer cases is frequently causation. The question usually is: if the cancer had been diagnosed earlier or in a timely fashion, how would the outcome be different than it is today? One must remember that in these kinds of cases, the injured party had cancer prior to the negligent action of the defendant Doctor or hospital. It will be the job of your attorney to prove that had the cancer been diagnosed earlier treatment would have been rendered which would make the prognosis/outcome much better than it now is.

A typical example is in the case of breast cancer. We have had cases where the defendant Doctor failed to act promptly when faced with a breast lump in one of their patients. As a result of a delay in treating the cancer that initially appeared as a lump, the patient has either died of the cancer or her life expectancy has been significantly reduced. In such a circumstance the attorney representing the injured woman will need to show that had the lump been diagnosed and treated promptly, then that treatment (whether it be, lumpectomy, mastectomy or other treatment) would have resulted in a normal or near normal life expectancy. Your attorney must also be prepared to face the inevitable defense to this case which is, that the delay in diagnosis was too short to make any difference and that even if the tumor had been timely diagnosed and treated, the outcome i.e. reduced life expectancy or death, would have been the same.

Peculiar to cancer maplractice cases are experts that deal specifically with cancer and tumors. Most commonly, oncologists (cancer specialists) are utilized. Additionally, physicians with a special expertise in tumor biology are often useful. These experts can look at the chemical and genetic makeup of the cancer taken from pathology samples, after the tumor is removed, and make educated opinions as to the likely makeup of the tumor at the time that it should have been diagnosed. Typically, the injured party's expert will opine that if the tumor had been diagnosed when it should have been, then the harm to the victim would have been minimal. At the same time it is also typical for the Doctor. or hospital to have an expert who will make the same analysis, but come to the opposite conclusion.

In order to prevail on such claims:

• It is important to have very credible experts
• It is essential that your attorney know how to find such experts; and
• Your attorney must have a good working knowledge of the applicable medicine.
• Your attorney must have the knowledge and experience to know how to highlight the weaknesses in the defendant's experts' opinions.

The following representative cases that our attorneys have handled illustrate these principles:

• Robinson
• Fields
• Byrne