Failure to Diagnose Cancer Lawyer NYC

When cancer is missed or diagnosed late, patients lose time. More importantly, and sadly, lost time often means loss of the est chance for cure.

Major guidelines for almost all cancers emphasize early diagnosis for this reason. If cancer has become more advanced by the time of diagnosis, we may be able to establish that the advancement of stage (and diminished chance for cure) is the responsibility of physicians (or health networks) if they did not follow standards of care, leading to delay in diagnosis.

We represent New York City patients and families harmed by delayed or missed cancer diagnoses, working with board-certified experts such as oncologists and pathologists to determine whether diagnostic failures caused preventable harm.

Under New York law, medical malpractice is defined as a “deviation” or “departure” from accepted standards of care that causes injury (NY Pattern Jury Instruction 2:150). In cancer cases, this often means a physician failed to order appropriate tests, misinterpreted imaging or biopsy results, or failed to follow up on concerning findings when a competent physician would have done so.

To prove “causation” of damages, we do not have to show it was “likely” the cancer would have been more curable at earlier stage, but that (due to malpractice and delay) there was “diminished” opportunity for cure (Kallenberg v Beth Israel Hosp., 45 A.D.2d 177, 1st Dept. (1974). In addition to “loss of chance” or diminished chance for cure, recoverable damages may include invasive treatments due to more advanced stage (such an avoidable mastectomy, or avoidable hysterectomy) or damaging treatment that would have been avoidable with an earlier diagnosis (such as radiation or aggressive chemotherapy).

While you should always investigate legal options as soon as practicable, the law now recognizes that cancer patients, in particular, may not know of the malpractice until years after the malpractice (particularly for a case based on delay) when a cancer should have been discovered years earlier. Therefore, since a law called “Laverne’s Law” the time limits to bring a cancer malpractice case are often extended, and do not start running until the date the patient was informed of their diagnosis (or date they should “reasonably” have been aware). Such cases much be brought within 2.5 years of discovery, with an outside limit of seven years.

Application of “Laverne’s Law” can be complex, and depends on the facts. You should consult with an attorney who understands the application of these specialized laws to cancer cases.

How Delayed Cancer Diagnosis Affects Patient Outcomes

Cancer staging often determines treatment options and prognosis.

When diagnosis is delayed, a Stage I cancer that might have been treated with local surgery alone may progress to Stage II, III or IV, requiring invasive (even disfiguring surgery) and aggressive chemotherapy or radiation. And, even with such treatment, more advanced cancers often and unfortunately carry worse survival rates.

We work with oncologists and other experts who can model the likely staging and prognosis of a cancer at the time it should have been diagnosed, and compare the prognosis and treatment to cancer at the time the time of actual diagnosis.

Types of Cancer Misdiagnosis We Investigate

We have represented clients in cases involving delayed or missed diagnosis of many cancer types. Each cancer has specific warning signs and screening protocols that, when ignored, may constitute malpractice.

Warning Signs Doctors Miss

Initially we interview the patient (or family members) to obtain their first-hand recollection of what happened and when. If the patient’s account is consistent with a delay, we will then typically obtain records and examine if the doctors followed (or breached) standards of care.

Depending on the area of medicine, we will compare the care rendered with guidelines applicable to their specialty (such as American College of Obstetricians and Gynecology guidelines for cervical or breast cancer).

A pervasive sense that “the doctor ignored me” is often a “red flag” for malpractice. Not all patients who feel this way are victims of malpractice. But it is often a telling starting point. If the patient feels they were ignored, there is often a reason. And, failure to listen to the patient (in addition to not following guidelines) can also be a source of malpractice.

Symptoms That Require Further Investigation

Of course we do not render medical advice. However, our experience in dealing with patients and families who’ve experienced delayed cancer diagnosis has impressed us with the importance of paying attention to some well supported, public health messages on what may warrant further investigation:

• Unexplained weight loss: Loss of 10+ pounds without dietary changes or known illness may warrant investigation for underlying malignancy
• Persistent fatigue: Fatigue that does not improve with rest may indicate anemia from internal bleeding (such as from GI cancer) or represent a systemic sign in many cancers.
• New or changing lumps: Any new mass or changing lesion requires evaluation/
• Unexplained bleeding: Blood in stool, urine, sputum, or between menstrual periods should be discussed with a doctor.
• Changes in bowel or bladder habits: New constipation, diarrhea, or urinary symptoms may indicate pelvic, prostate or colorectal cancer

When any of these have been present, we will often ask questions that may help elicit if there is appropriate basis for a case:

• When were these symptoms first reported?
• Were they persistent?
• What does the chart say about it?
• How did the physician respond, according to the patient? Does this match the chart?
• What tests were ordered? How does this compare to what guidelines recommend?

Diagnostic Failures That May Constitute Malpractice

Cancer diagnosis involves multiple steps, and failure can occur at any point. We investigate every stage of the diagnostic process to identify where the breakdown occurred.

How We Investigate Delayed Cancer Diagnosis

We obtain the medical record from the relevant physicians and practices to reconstruct the history of symptoms, testing and diagnosis.

Often what is not in the chart is most significant. For example, if a patient over 50 does not get a recommendation for colonoscopy, or female patient at high risk over 40 does not get a mammogram, this may be the most important evidence in the records.

Records We Obtain

• We typically start with records of the “primary suspect” physician. If that review (in connection with client recollections and research) indicates potential deviations from good care, we may then obtain.
• Imaging studies (mammograms, CT scans, MRIs, X-rays, ultrasounds, as applicable)
• Laboratory results (if they bear on either care, or causation issues)
• Pathology reports
• Hospital records if inpatient workup occurred

Expert Analysis

We send records to physicians from the same specialty as the physician whose care is being evaluated, to evaluate if the standard of care required earlier or more focused investigation.

For imaging cases, we work with radiologists, or subspecialty radiologists in certain cases (such as Neuro radiologists). We will obtain their review the imaging studies themselves (not just reports) to determine whether important or suspicious findings were missed.

Broadly speaking, our experts address: When should this cancer reasonably have been diagnosed? What stage was it at that point? How would earlier treatment have affected treatment and prognosis?

The Legal Standard for Cancer Malpractice in New York

To establish a delayed cancer diagnosis claim in New York, we must prove that a physician deviated from accepted standards of care and that this deviation was a “substantial factor” in causing harm (NY Pattern Jury Instructions 2:70, 2:150).

In cancer cases, causation may be met by showing “loss of substantial chance” of a better outcome.

What We Must Prove

• Deviation from standard of care: A competent physician in the same specialty would have ordered additional testing, interpreted results differently, or referred the patient for further evaluation
• Causation: Earlier diagnosis would have led to treatment at an earlier stage, resulting in better outcomes. This may involve proving “loss of chance” of survival or cure
• Damages: The patient suffered harm including need for more aggressive treatment, reduced life expectancy, non-economic damages, and loss of quality of life

Filing Deadlines for Cancer Malpractice Claims in NYC

Time limits for filing cancer malpractice claims depend on whether the hospital is public or private. Missing these deadlines may bar your claim entirely. While not every concern warrants a malpractice case, you should investigate with an experienced malpractice attorney without delay to avoid unnecessary loss of a meritorious claim.

Lavern’s Law: The Discovery Rule for Cancer

New York’s Lavern’s Law (effective January 2018) provides a critical exception for cancer misdiagnosis cases. Under CPLR Section 214-a(5), the 2.5-year statute of limitations may run from the date you discovered or reasonably should have discovered the alleged malpractice, rather than from the date of the negligent act. This law was enacted because cancer patients often do not learn their diagnosis was delayed until years later when cancer is finally found at an advanced stage.

Lavern’s Law applies specifically to claims involving failure to diagnose cancer or a malignant tumor. The law includes an outside limit: the action must be commenced within seven years of the original negligent act, regardless of when discovery occurred.

Compensation for Delayed Cancer Diagnosis

Delayed cancer diagnosis cases may involve substantial damages, particularly when the delay resulted in progression to a later stage with worse prognosis. Even for individuals who are not gainfully employed, the loss of ability to engage in activities that were formerly an enjoyable part of life, may be sufficient, and significant damages available in a malpractice case.

Types of Damages

• Medical expenses: Cost of additional treatment required due to later-stage diagnosis, including surgery, chemotherapy, radiation, and ongoing care
• Lost wages and earning capacity: Income lost during treatment and reduced future earning capacity
• Pain and suffering: Physical pain from more aggressive treatment and emotional suffering from reduced prognosis
• Loss of enjoyment of life: Impact on ability to engage in activities and relationships
• Wrongful death: If the patient died from cancer that could have been cured with earlier diagnosis, the family may have a wrongful death claim

Our Track Record in Delayed Diagnosis Cases

We have obtained significant results for clients harmed by diagnostic delays, delayed diagnosis of breast cancer, delayed prostate cancer, delays in liver cancer, delayed solid tumor diagnosis and delays from colon cancer screening.

What Sets Our Approach Apart

We have deep insight based on decades of litigation and research in the field of medical malpractice. We’ve actively tried (and won) cases before Juries skeptical of malpractice plaintiffs, and have “internalized” the questions that jurors will typically ask, and things they want to know in the course of a malpractice trial.

Our approach to investigation is informed by state of the art research and a network of world class experts we’ve developed, including relationships with experts at leading medical institutions throughout the country.

Complete Record Review

We analyze records meticulously. We look for gaps, nuance, physician thought process and often what is missing from the record to investigate the care.

New York City Hospitals and Cancer Diagnosis

We have represented clients in cancer malpractice cases against major NYC hospitals including some of the “leading” institutions, such as  Memorial Sloan Kettering, Mount Sinai Medical Center, NYU Langone, NewYork-Presbyterian, Montefiore, Maimonides, and NYC Health + Hospitals facilities.

Our experience with these institutions helps us understand their organizational structures and policies. We know how to obtain records, evaluate different medical records systems in use at the different institutions.

We represent patients who believe they received substandard cancer care at hospitals throughout New York City, including major academic medical centers and community hospitals in all five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.

Many hospitals advertise that they provide “comprehensive cancer care” and “multidisciplinary tumor boards.” These marketing claims create expectations. When patients report concerning symptoms and are told everything is fine, only to learn months later that cancer was present and progressing, it raises questions about whether those expectations were met.