Cancer Malpractice in New York City

Unfortunately, a delayed cancer diagnosis may allow what should have been an easily treatable condition to become advanced or even terminal.

The consequences in delayed cancer diagnosis may be medical, financial and take a tremendous toll on the whole family.

We have represented clients in cases against major NYC institutions including Memorial Sloan Kettering, NYU Langone, Mount Sinai, NewYork-Presbyterian and NYC Health + Hospitals facilities.

Under New York law, medical malpractice occurs when a healthcare provider’s care deviates or “departs” from accepted medical practice and that departure causes injury (NY Pattern Jury Instruction 2:150). For cancer cases specifically, we must prove that an earlier diagnosis, made at the time the provider would likely have identified the malignancy, depriving the patient of a “significant chance” of an improved outcomes.

How Cancer Diagnosis Failures Occur in NYC Hospitals

We investigate cancer malpractice cases by listening to the patient, to get insights into where treatment failures may have occurred. We then follow up to obtain relevant medical records and identifying from the evidence when and where a breakdown in care may have occurred. The failures we see often fall into patterns:

Imaging and Test Interpretation Failures

A radiologist reviews a mammogram, CT scan, or chest X-ray and either misses an abnormality or dismisses it as benign when it required further investigation. The Lavern Wilkinson case that led to Lavern’s Law involved exactly this scenario: a chest X-ray showed a suspicious lung mass, the radiologist noted it, but no one communicated this finding to the patient. By the time she learned of the cancer, it had spread to both lungs, liver, brain, and spine.

We obtain the original imaging studies and have them reviewed by radiologists who assess whether the abnormality was visible at the time and whether a competent radiologist should have flagged it for follow-up.

Biopsy and Pathology Errors

When tissue is collected for biopsy, pathologists must accurately identify cancerous cells. We’ve investigated cases where pathology slides were misread, where tissue samples were mislabeled. In some case, the wrong site was biopsied entirely. We work with board-certified experts including pathologists who can re-examine the original specimens and compare findings to what was documented.

Communication Breakdowns

A test result shows concerning potentially suspicious findings, such as “condition probably benign, but the potential for malignancy cannot be ruled out” but the ordering physician treats the report simply as reassuring, without follow up. In some cases the patient is not informed of the result. In large hospital systems typical in NYC, with multiple Departments and campuses, communication failures can become problematic. We reconstruct the chain: when were results available? Who was notified? When was the patient was informed?

Lavern’s Law: New York’s Discovery Rule for Cancer Cases

Before 2018, New York applied a strict 2.5-year statute of limitations measured from the date of malpractice for all medical malpractice cases. This created injustice in cancer cases where patients did not discover the missed diagnosis until years later when symptoms finally appeared or when a new physician reviewed old records.

Lavern’s Law (CPLR 214-a(5)) changed this for cancer misdiagnosis cases. The law now provides that actions based on negligent failure to diagnose cancer may be started within 2.5 years of the later of:

• When the patient knew or reasonably should have known of the negligent act and knew or should have known it caused injury, OR
• The date of last treatment where there was continuous treatment for the condition

The law includes an absolute outer limit: no case may be started more than 7 years from the alleged negligent act or last treatment.

What This Means for Your Case

We determine when the discovery rule applies by reconstructing the timeline: when was the cancer actually diagnosed? When did imaging or records from earlier providers become available showing the earlier abnormality? When should a reasonable person have known that something was missed?

For example, if you received a clean mammogram in 2022, and in 2025 a new physician reviews that same mammogram and identifies what is clearly cancer that was visible in 2022, your 2.5-year period begins running from when the new physician told you about the earlier miss, not from 2022.

Public vs. Private Hospital Deadlines in NYC

New York City operates two distinct hospital systems with critically different legal deadlines for malpractice claims.

The 90-day Notice of Claim requirement for NYC Health + Hospitals facilities under General Municipal Law 50-e is separate from Lavern’s Law. Even if Lavern’s Law extends your time to discover the malpractice, once you discover it, you have only 90 days to file the Notice of Claim if the care was at a public facility.

NYC Health + Hospitals Facilities by Borough

NYC Health + Hospitals is one of the largest public healthcare systems in the country, operating 11 acute care hospitals across the five boroughs. Claims against these facilities require the 90-day Notice of Claim. Some notable facilities include (not an exchaustive list).

Types of Cancer Malpractice Cases We Handle

We have represented clients in cancer malpractice cases involving:

• Breast cancer (failure to recommend mammogram, misread results, delayed biopsy)
• Lung cancer (missed findings on chest imaging)
• Colorectal cancer (failure to perform or follow up on colonoscopy)
• Prostate cancer (failure to order PSA testing or investigate elevated results)
• Skin cancer (missed melanoma )
• Cervical cancer (failure to provide PAP smear or HPV testing, failing to respond to abnormal bleeding)
• Ovarian cancer (missed symptoms, delayed imaging)
• Brain tumors and pituitary tumors (abnormal or persistent head pain, new onset of seizure, unexplained mental symptoms).

Each cancer type involves specific screening protocols, staging systems, and standard-of-care requirements that we analyze with appropriate subspecialists.

What We Investigate in Cancer Malpractice Cases

We build cancer malpractice cases by obtaining records, analyzing Guidelines and standards of care, and comparing what happened to what should have happened under accepted standards.

Documents We Obtain

• Medical records from treating providers
• Original imaging studies (mammograms, CT scans, MRIs, X-rays, ultrasounds)
• Pathology slides and reports
• Lab results including tumor markers
• Radiology reports
• Hospital communication logs
• Electronic health record audit trails showing when results were viewed

Expert Analysis

We work with board-certified specialists who review the records and provide opinions on:

• Radiology experts: Were abnormalities visible on imaging that should have been identified?
• Pathology experts: Were tissue samples correctly interpreted?
• Oncology experts: What was the stage at the time of the missed diagnosis versus when finally diagnosed?
• Medical oncologists: How did the delay affect treatment options and prognosis?

Proving Causation in Cancer Cases

Cancer malpractice cases require proving that the delay affected outcomes. This is different from proving the cancer existed earlier. We must demonstrate to a “reasonable likelihood”:

1. That cancer was diagnosable earlier: Through imaging, testing, or clinical presentation, the cancer could have been identified at the earlier date
2. That delay caused harm: The cancer progressed during the delay period, resulting in worse staging, more aggressive treatment requirements, or reduced survival probability
3. Better outcomes were possible: Earlier treatment would have offered better prognosis, less invasive treatment options, or improved quality of life

Oncology experts analyze cancer staging data and survival statistics to quantify how the delay affected prognosis. For example, if breast cancer was Stage I when it should have been diagnosed but Stage III by the time it was actually diagnosed, the difference in five-year survival rates demonstrates the harm caused by the delay.

Our Cancer Malpractice Case Results

We have obtained seven-figure results in many cancer cases.

Coverage Across All Five NYC Boroughs

We represent clients who received care at hospitals throughout New York City. Our experience includes cases filed in all five borough courts.

Compensation in Cancer Malpractice Cases

Compensation in cancer malpractice cases reflects the severity of harm caused by the diagnostic delay:

• Additional medical expenses: More aggressive treatment, extended chemotherapy, radiation, multiple surgeries, and ongoing care that would not have been needed with earlier diagnosis
• Lost income: Time away from work during extended treatment, reduced earning capacity if unable to return to previous employment, loss of career advancement opportunities
• Physical pain and suffering: Physical pain from more invasive treatment, emotional distress from advanced diagnosis, anxiety and depression, loss of quality of life
• Loss of enjoyment of life: Even for individuals who are not gainfully employed, the loss of ability to engage in activities may be significant compensation in a malpractice case
• Wrongful death: When delayed diagnosis leads to death, the family may recover for the decedent’s pain and suffering before death, funeral expenses, and loss of financial support and services under EPTL 5-4.3

Red Flags That May Indicate Cancer Malpractice

You may have a cancer malpractice case if:

• A doctor told you that the cancer was visible on earlier imaging
• You were told your cancer “should have been caught sooner”
• You had symptoms for months or years that were dismissed or misdiagnosed
• A screening test showed abnormal results that were not followed up
• Your cancer was found at an advanced stage despite regular medical care
• A healthcare provider apologized or said something “fell through the cracks”
• You feel there was unreasonable delay between your initial concerns and diagnosis

Did any doctor in the hospital tell you that you should “see a lawyer”? This happens more often than you might expect, and it’s often a signal that providers recognize something went wrong.