One of the most frequent medical malpractice issues is the failure to timely diagnose and treat cancer. 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 can be directly caused by a careless health care provider, cancer is usually not caused by the physician involved in the patient’s care. In most instances 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 fulminant that they are seldom diagnosed in time to successfully treat. Others are simply not amenable to cure despite the best efforts of available and current treatments. Cancer of the liver and pancreas, for example, fall into these categories. Many cancers, however, can be treated, and these are the ones which can result in successful claims when the healthcare provider has been found to have breached the standard of care.
The law requires the plaintiff to prove that the negligent act of another was the direct and proximate cause of his 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 (metastasized) 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 palliative relief and to perhaps extend the patient’s life by a few months or years. Such cases are usually defensed.
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 may be quite different. Cancer treatment “cure” is usually defined as being free of cancer for at least 3-5 years depending on the particular malignancy. To arrive at an opinion in such cases the Oncology expert must refer to the published medical literature on cancer survival rates.
Many plaintiffs are disappointed to learn that they have no case even though the evidence reflects that the physician was clearly negligent. For example, a patient undergoes a chest x-ray that clearly reveals a mass on the lung. The radiologist fails to identify the mass, and the patient therefore receives no referral or treatment. A year later the patient undergoes another chest x-ray as part of his annual physical. This time the mass is properly identified. A biopsy proves the mass to be cancer. Further tests, however, demonstrate that the lung cancer has already metastasized to the patient’s liver. As such, the patient is now suffering from Stage IV lung cancer which has a dismal prognosis. While the lawyer can prove that the doctor who misread the original x-ray was negligent, it may be quite difficult to prove that the one year delay had any significant impact on the patient’s treatment or poor prognosis. That is to say, an expert would have to establish to a reasonable degree of medical certainty that one year earlier the patient had a lower stage malignancy with a better survival rate, that is, the tumor had not yet metastasized. If that can be established, then earlier treatment would have changed the outcome. The patient would, more likely than not, have survived.
But if it cannot be established that his tumor had not yet metastasized one year earlier, than it would be impossible to show that the patient suffered any measurable damages as a result of the negligence. Therefore, there would be no viable claim.
Thus, in evaluating cancer cases, the issue of causation should usually be addressed first, that is, did the delay in diagnosis make any demonstrable difference? An Oncologist would need to evaluate the chart and render a causation opinion in this regard.
