Cancer Malpractice Lawyer in Westchester County

Westchester County is “above average” in many metrics. It is one of the most populated counties in New York State (over 1 million and counting). Median income is well above average for the state as is the number of sophisticated hospitals and physicians available. Yet cancer malpractice also happens here.

Why is this? This is because the issue of malpractice is always individual. Even an otherwise “good” hospital or medical practice can fall short for a given patient on a given day. Medical malpractice is defined as a “deviation” or “departure” from accepted standards of medical practice that proximately causes injury (NY Pattern Jury Instruction 2:150). When that departure involves a missed or delayed cancer diagnosis, the consequences — more aggressive treatment, reduced survival odds, or death — are often irreversible.

We represent cancer malpractice clients throughout Westchester County from our Scarsdale office (1 Chase Road, in Scarsdale Village) so clients do not need to travel into the city for consultations. We have represented clients in cancer malpractice cases involving hospitals and physicians throughout Westchester, and we know the county’s court, its hospitals, and the attorneys who represent those institutions.

How Cancer Gets Missed and Diagnostic Failure Patterns We See

Cancer malpractice cases often involve multiple errors or “system” errors.

For example, a medical practice may fail to implement policies to advise patients about the need for cancer screening (such as breast cancer screenings for patients with family history, or colon cancer screenings for patients over age 45) –and we’ve seen practices with absolutely no polices on these subjects. So it was left up to the individual physician (or Physician’s Assistant) seeing the patient on a given visit to flag the issue. And that provider fails to see the issue (or review records) and the patient is overdue, and develops an advanced cancer. In this type of scenario, which is not uncommon, there is fault of both the practice (system failure) and a provider failure (not reviewing records and/or failure to recognize the patient was overdue).

Or, a patient may go an Emergency Room or Urgent Care for an acute issue (such as trauma) but the imaging test shows a possible, suspicious growth elsewhere. The Radiologist might discuss that issue in the body of the report, but not include it in the (final) “Impression” — yes we’ve seen that too. So in that case there is a Radiology failure (failure to include “possible cancer” or similar in the final impression. But the ER Attending might not take the time to read the report either, and so the patient “falls between the cracks” and the issue is never identified. Here too (as in many cancer malpractice cases) there are multiple errors that lead to a poor (sometimes tragic) outcome.

Other patterns we see occur when a Primary Care physician, or other physician following a patient over time, never “puts the picture together” such as a physician who continues to attribute fatigue or unexplained bleeding to benign causes, without considering and ruling out cancer.

How We Investigate

We obtain all records in that diagnostic chain. We interview the patient — or, if the patient has passed away family members or others close to them — to obtain their first-hand account of what symptoms they observed, or heard about, and when. This often helps us to fill in gaps in the records.

The records themselves are almost always key evidence. We do our own, in-house review. And if it appears that the matter has merit, we then send them for physician review. Depending on the case issue, we may send them for multiple reviews, often to subspecialists such as board-certified radiologists, pathologists or other cancer specialists. This helps us assess not only whether there was fault, but also to be sure (as sure as possible) we can show how a missed or delayed diagnosis, or other malpractice, led to a compromised outcome.

Imaging Failures: When Radiology Misses An Important Finding

Radiologists at some Westchester community hospitals interpret imaging of many different types, such as reading an arm X-ray after an abdominal study, then a chest CT, etc. At a dedicated cancer center, a breast imager might review mammograms or cancer related imaging exclusively. Sometimes there is a “clear miss” when an obvious mass is missed. Other times there is something that raises attention, but is not sufficiently defined to “call it” as malignant or benign.

In those situations, malpractice and delayed diagnosis can result in the Radiologist (or clinician ordering the study) failing to recommend or order the appropriate follow up. This may occur, for example, if a CT scan shows “suspicious” findings, and an MRI would help clarify it, but is not ordered. Or, there may be a missed recommendation for biopsy, on the part of either the Radiologist or clinician ordering the study.

We work with subspecialty radiologists who review the original imaging files — not just the written reports. They assess what was visible on the study, whether a reasonable radiologist would have seen findings that were missed, or recommended biopsy or different follow-up. Radiologist experts often help us “stage” the cancer, when it was diagnosed, and what the stage would likely have been if diagnosed earlier, which helps us to prove “causation” of damages.

In one of our cases, a Westchester patient’s mammogram described a finding as “likely benign — follow-up in six months,” when it should have been read as “suspicious — biopsy recommended.” During the recommended six-month interval an early-stage breast cancer progressed to one requiring more aggressive surgery and chemotherapy. While, fortunately, the patient retained a good prognosis, the advancement in stage, need for more invasive treatment, and statistically increased chance for recurrence resulted in a substantial settlement.

Some Cancer-Specific Patterns We See

Certain diagnostic-failures are “classic” for different cancers. Some that we’ve seen include:

• Breast cancer. Mammogram findings reported as “likely benign” or “stable” without subspecialty re-read or comparison to prior studies; failure to order ultrasound or MRI follow-up on dense-breast or family-history patients; biopsy deferred when a BI-RADS category warranted it.
• Colorectal cancer. Patients reporting rectal bleeding, anemia, or unexplained weight loss managed as hemorrhoids or “irritable bowel” without colonoscopy referral; positive FIT or FOBT results not followed by colonoscopy; surveillance intervals after polypectomy not honored.
• Lung cancer. Pulmonary nodules on chest CT described as “indeterminate, follow up in 6–12 months” without Fleischner Society criteria applied; nodule-tracking falling off the patient’s chart after a primary care change; smoking-history patients without low-dose CT screening when guidelines indicated it.
• Prostate cancer. Rising PSA trends not acted on; prostate biopsy deferred despite suspicious DRE findings; PSA monitoring not adjusted for known risk factors (family history, African-American patients).
• Melanoma. Pigmented lesions not biopsied or photographed for tracking; “ABCDE” features documented but no biopsy ordered; dermatology referral not made when the lesion characteristics warranted it.
• Pituitary and brain tumors. Headache, vision changes, or hormonal symptoms (fatigue, weight changes, mood changes) not worked up with imaging when the clinical picture warranted MRI. In one of our cases, a patient’s pituitary tumor went undiagnosed for years despite presenting symptoms consistent with hormonal disruption — by the time the diagnosis was made, the patient had suffered permanent endocrine, sleep, and mood changes; the case resolved for $2.63 million.

The “Watch and Wait” Problem

In cancer diagnosis, “watchful waiting” can be appropriate clinical management, or it can be a substitute for decisive action that accepted medical practice required. We’ve investigated cases where Westchester physicians recommended monitoring a concerning finding — such as a pulmonary nodule, an abnormal lymph node, a suspicious breast mass — rather than proceeding to biopsy or referral. The standard asks whether the decision to wait was “reasonable” or whether accepted standards of medical practice in the relevant specialty would have led to different treatment. Often in such cases we refer to Association “Guidelines” which, while often not the complete “standard of care” can constitute important and objective evidence in a case (when a physician fails to follow their own specialty guidelines).

Failing to “Rule Out”

Failure to “rule out” a dangerous diagnosis before reassuring a patient is also a recurring basis for malpractice claims.

A concerning finding on imaging, a rising tumor marker, or a constellation of symptoms consistent with cancer requires systematic diagnostic workup — not reassurance based on incomplete evaluation. Discharging or dismissing a patient without ruling out the most dangerous diagnosis on the differential is the kind of departure that we can identify and explain to a jury.

Referral Failures: When Westchester Physicians Should Have Sent Patients to Specialists

Patients in Westchester have (or should have) access to subspecialty resources and major cancer centers in Manhattan. Many of our local hospitals are affiliated with large healthcare networks (such as New York Presbyterian, Northwell and Montefiore). In such cases, referral to appropriate specialties should be seamless, and can be the standard of care. In other cases, even without having an affiliate, a physician should recognize when a subspecialty referral may be needed. There are many cancer centers, not only in Westchester itself but nearby New York City, that should be discussed as potential referral options (such as Memorial Sloan Kettering, NYU Langone Perlmutter, and others)when patient needs are greater than local resources. The standard of care sometimes requires a Westchester physician to refer a patient rather than manage them locally.

We will investigate: at what point did the standard require referral? What stage was the cancer when the patient eventually reached a cancer specialist? And to a reasonable degree of medical likelihood, would earlier referral have changed the treatment required and the outcome the patient faces?

Westchester Hospitals: Who They Are, Who Owns Them, and What We Have Seen

Our understanding of hospital organizational structure assists in our analysis and litigation of cancer cases. Different facilities have different capabilities, different staffing models, and — critically — different filing deadlines. We have litigated against most hospitals in our area, and we understand the differences in medical records systems (particularly different “electronic health record” systems). How different hospitals, practices and residency programs are structured all provide context for how errors (often of communication or supervision) can also compromise care.

Filing Deadlines in Westchester: The Table Every Potential Plaintiff Needs

The threshold question in any cancer malpractice case is: have you missed the filing deadline? Deadlines in Westchester vary by facility type, and the consequences of missing them are absolute. Cases filed after the deadline are dismissed regardless of how strong the underlying malpractice claim is.

Westchester Medical Center — 90-Day Notice of Claim Required: WMC is operated by the Westchester County Health Care Corporation (WCHCC), a New York State public benefit corporation governed by Public Authorities Law § 3316, which incorporates the notice-of-claim and statute-of-limitations procedures of General Municipal Law § 50-e and § 50-i. A Notice of Claim must be served within 90 days of the malpractice, and any lawsuit must be filed within 1 year and 90 days of the event. Many people assume the standard 2.5-year private-hospital deadline applies to WMC; for WMC it does not — the 90-day Notice of Claim controls, and missing it can end your case before it begins.

Lavern’s Law: The Discovery Exception Extending the Filing Deadline for Missed Cancer Diagnoses

Under CPLR § 214-a(b), enacted as Lavern’s Law in 2018, a cancer malpractice claim based on negligent failure to diagnose may be filed within 2.5 years from the date the patient knew or reasonably should have known of both the alleged negligent act — rather than from the date of the negligent act itself.

This can be critical in cases where the missed diagnosis was not discovered until years later, which is in fact typical of a “delayed diagnosis” case (the harm realized some years after a missed diagnosis).

However, § 214-a(b)(i) imposes an absolute outer limit of seven years from the negligent act or omission, and not all cancer cases qualify. The discovery rule applies when the negligent failure to diagnose is what delayed the patient’s knowledge of the cancer and its cause. If you believe your cancer was missed years ago, do not assume Lavern’s Law automatically gives you more time — the specifics of your case determine whether the extension applies. Contact us promptly so we can assess which deadline controls.

How We Investigate and Build a Cancer Malpractice Case in Westchester

Every cancer malpractice case requires careful investigation before starting a case. We always (at least) investigate two issues: first, did the physician or provider “departed from accepted standards of medical practice” (the liability question under the Jury Instructions). Secondly, we invesigate whether a breach in “standard of care” was a proximate cause of the plaintiff’s injury — meaning that, to a reasonable degree of medical likelihood, would an earlier diagnosis or different treatment have materially changed the outcome. Both must be established in order to have a viable legal case.

What We Obtain

• Medical records from the relevant providers, which may include primary care, imaging centers, hospitals, specialist referrals.
• Original imaging files (not just radiology reports) from all facilities where relevant studies were performed
• Pathology specimens and tissue slides when applicable, for independent review by a subspecialty pathology experts
• Lab results
• Electronic medical record audit trails (as needed) if there are issues of potential record alterations, or when the time notes were created is an issue.
• Referral correspondence between institutions when consults or transfers were considered.
• Records from the treating cancer physicians after diagnosis, showing what stage the cancer was when found –often with implications on the difference an earlier diagnosis would have made.

The Expert Review Process

After or in connection with our internal review, we also send records to outside experts, who (depending on the case) may be board-certified subspecialists. We’ve worked with oncologists, radiologists. Surgeons and many sub-variations of each.

Depending on the case, we also utilize Economists and Life Care Planners to project lifetime economic losses, such as when cancer malpractice has resulted in loss of income, or a permanent injury requiring ongoing treatment. When a delayed diagnosis has resulted in death, our economists can help us calculate the value of “wrongful death” claims (including loss of household services) under the law (EPTL § 5-4.3.).

Overall many cancer cases can be summarized by the following questions: At what point should cancer have been diagnosed? What stage was it then, compared to when eventually diagnosed? And to best we can reconstruct it, would earlier intervention have likely led to better outcome? (e.g. spared some additional surgery or chemotherapy, or prevented a loss of life ?)

Compensation May Be Available in Westchester Cancer Malpractice Cases

When a delayed cancer diagnosis forced a patient to undergo more aggressive treatment, reduced their life expectancy, or caused a family member’s death, substantial compensation may be available. New York does not cap non-economic damages in medical malpractice cases, which means there is no statutory ceiling on compensation for the physical and emotional consequences of the malpractice.

Recoverable damages include additional medical costs — the chemotherapy, radiation, and surgery that would not have been needed with a timely diagnosis — as well as lost income, reduced earning capacity, and non-economic damages including conscious pain and suffering. Even for individuals who are not gainfully employed, the loss of ability to engage in activities, hobbies, and relationships may support significant damages in a cancer malpractice case. The jury is entitled to consider the full scope of what the patient lost as a result of the delayed diagnosis.

When the delayed diagnosis results in death, the patient’s estate and beneficiaries may have wrongful death claims under Estates, Powers and Trusts Law (EPTL) § 5-4.1. Those claims must be filed within two years of the date of death and must be brought by the personal representative of the estate. Recoverable wrongful death damages under EPTL § 5-4.3 include pecuniary injuries to the distributees — financial support, services, and guidance the decedent would have provided — as well as reasonable medical and funeral expenses. Pre-death conscious pain and suffering is recovered separately through the survival action under EPTL § 11-3.2.

We have represented clients in cancer malpractice cases in Westchester and throughout the New York metropolitan area, including multi-million recoveries. Prior results do not guarantee a similar outcome.

Filing Your Case in Westchester County

Cancer malpractice cases arising from Westchester care are typically filed in Supreme Court, Westchester County, at 111 Dr. Martin Luther King Jr. Blvd., White Plains, NY 10601. If you are a Westchester resident who received care outside the county, the case may typically be filed either in your county of residence or where the malpractice occurred. We will also evaluate which county (if choices are available) may be best suited to optimize the results in your case.

New York requires a Certificate of Merit in medical malpractice actions under CPLR § 3012-a, meaning our attorneys must consult with at least one qualified physician who confirms the case has merit before filing.

Our primary office is in Westchester (Scarsdale NY, at 1 Chase Road). We also have convenient offices in Midtown Manhattan for clients who prefer to meet in that location, or to serve our New York City clients.

Attorney fees in New York medical malpractice cases are governed by Judiciary Law § 474-a, which imposes a percentage limitation on fees, based on the amount of recovery. This limits fees to 30% of the first $250,000 recovered, 25% of the next $250,000 recovered, and lower percentages for larger amounts. We discuss case fees transparently with all clients, and will answer any questions you may have as to fees and expected net recovery during our consultations.

We encourage you to learn more about our past results in cancer and other medical malpractice cases on our results page.