Cancer, delayed diagnosis and failure to follow guidelines

Cancer is one of the leading causes of death and disability in the United States.

Most cancer is not caused by malpractice. But we have unfortunately seen recurring situations of delayed diagnosis. It is typically true in cancer (as many areas of life) that “the sooner the better.”

The sooner a cancer is diagnosed, it is generally smaller, and at an earlier “Stage.” Early-stage and small cancers can often be treated by less damaging means (avoiding radical or disfiguring surgery, or less intensive chemotherapy). The earlier and smaller the cancer, the less likely that it has spread or “metastasized” to other areas of the body, which may represent at that point represent an incurable condition.

Many malpractice cases involve whether the medical provider timely diagnosed cancer. Common scenarios include:

  • Primary care physician not recommending colonoscopy when indicated (colon cancer)
  • Failing to provide or recommend PSA testing (prostate cancer)
  • Primary care of OB-GYN not conducting proper breast exam, or ordering sufficient imaging in response to findings (breast cancer)
  • Radiologists failing to properly interpret an imaging study (such as X-ray or MRI) as “suspicious” for cancer (tumors of many types)
  • Not providing a specialist referral to investigate unusual symptoms, such as an ongoing cough, unexplained difficulties swallowing, etc. These are often described as a “failure to refer.”

Evaluating a delayed diagnosis case will include analysis of the type of cancer, the time period of delay caused by malpractice, and what a qualified expert would say that the delay cost the patient in terms of ability to avoid the effects of cancer.

In New York, the legal standard is to show a “loss of chance” of cure or better result. That is, the Plaintiff need not show that he or she would likely have had a better result with the proper diagnosis, but that due to malpractice they were deprived of even a “significant chance” for better result. [1]

We have successfully tried, and negotiated, many cancer cases involving cancer of the breast, colon, liver, and prostate, and other less-common cancers as well.

We have developed an appreciation for preventive care and cancer screening guidelines that have been developed by many medical associations, such as the American Cancer Society, the Centers for Disease Control (“CDC”), and others.

For example, the CDC has for many years recommended that all patients born between 1945 and 1965 be tested for hepatitis C, due to the prevalence of this condition in that age group, which presents a high risk of progressing to liver cancer. While a standard and data-driven recommendation, with a low cost for testing, many physicians still do not follow that recommendation leading to unnecessary cases of (often fatal) liver cancer.

If a physician does not follow recommended guidelines for PSA testing, breast cancer screening, colon cancer screening, or other guidelines, which results in delayed diagnosis, this is often a strong legal case. If you or a family member has developed one of these cancers, it is often prudent to do a “look back” in medical care, to determine if there was a failure to provide recommended cancer screening.

[1] Jump v Facelle, 292 A.D.2d 501 (Second Dept. 2000).