Failure to Diagnose Cancer

Cancer is one of the leading causes of morbidity and mortality worldwide. Early diagnosis, however, can save lives. Studies show that early detection for the eight most common cancers, such as breast, malignant melanoma and testicular cancers, significantly increased survival rates. Ninety percent of patients whose cancer was diagnosed at stage one survived for 10 years, whereas that figure drops to 5 percent for those whose disease is diagnosed at stage four.

The goal of medical malpractice law is to help those who have been injured due to negligence. Medical malpractice cases help to determine whether patients received proper care, including an accurate assessment and course of treatment. Medical malpractice cases also often provide compensation for those injuries, compensation that helps to pay for medical bills, lost wages, pain and suffering, lifetime care and other damages. Compensation may also be provided for the loss of life due to negligent care.

Failure to diagnose cancer often means that a patient misses an opportunity for a cure. When doctors fail to provide a timely or accurate diagnosis – and that lapse causes harm or injury --medical malpractice law enables patients and their families to recover compensation for the resulting harm.

Frei, Mims and Perushek attorneys have successfully helped victims and their families to recover compensation when a medical professional has failed to diagnose cancer. Due to confidentiality agreements, we can’t always share the details of some settlements. While this is not in the best interest of the public (who have a right to know about settlements against specific doctors and hospitals), it is often in the best interest of the client to reach a settlement, even if it’s confidential.

• $1.245 Million for Failure to Timely Diagnose Prostate Cancer
• Failure to Diagnose Bone Cancer Case Settles for $1 Million

The foundation of a failure to diagnose cancer lawsuit is comprised of three elements:

• A doctor-patient relationship must have existed at the time of the alleged error in diagnosis. This is established when a doctor examines a patient or provides treatment; no written contract is required. Within this relationship, doctors have a “duty of care” to provide reasonably competent care, including the duty to recognize and diagnose health problems.
• The doctor’s error was “negligent.” “Negligence” is determined by “standard of care.” The standard of care is what other reasonably prudent medical professionals would do in a similar circumstance. The plaintiff’s attorney first has to establish the standard of care through the use of expert testimony and then prove that their doctor failed to meet that standard.
• The negligence caused the patient harm. Cancer does not always exhibit clear signs; some patients do not experience any symptoms until the disease is advanced. Patients must prove that if the cancer was timely diagnosed then the outcome would have been different.

The value of expert testimony in a medical malpractice case cannot be overstated. The standard of care is established only through the testimony of medical experts. The expert testimony is often the most pivotal aspect of a jury trial and so the credibility or believability of the expert’s testimony is critical. Over the past several decades, Frei, Mims and Perushek attorneys have cultivated a network of preeminent physicians who are experts in cancer diagnosis and treatment. To identify the best expert for your case, our attorneys will call upon leading medical experts in the specifics of your case, those with extensive experience, who have conducted research and taught physicians, published peer reviewed journal articles, and who are able to communicate well with the jury.

Medical malpractice cases are complex, requiring not only deep knowledge of the law but a solid understanding of the medicine. Understanding the medicine is what enables a medical malpractice attorney to review medical records in a meaningful way, discuss possible negligence with experts, and perhaps most importantly, to communicate with the jury. Our partners each have more than 40 years of experience. Partner Gary Mims recently earned the distinct of Medical Malpractice Attorney of the year in this region by Best Lawyers. Another reason the experience of your attorney really matters is that research shows that juries are biased in favor doctors in medical malpractice cases.

A study examining 20 years of medical malpractice trials found that physicians win 50 percent of trials in cases that have strong evidence of medical negligence; they win 70 percent of the borderline cases. This study found that juries are likely to give the physician “the benefit of the doubt” when experts on both sides of the case are credible. However, the research also indicates that defendants are more likely to hire an experienced attorney which “makes it difficult for malpractice plaintiffs to win even strong case.” Further, the research indicates that “juries may be skeptical of patients who sue their doctors,” another reason why the experience of your attorney matters, really matters.

The standard of care for diagnosing cancer involves the concept of timely diagnosis. This means that a doctor will recognize the cancer at a point when other similar, reasonably prudent doctors would likely have identified and diagnosed the cancer. Cancer can only be definitively diagnosed with a biopsy and evaluation of a pathologist.

For example: a rise in a patient’s PSA (prostate specific antigen) is sometimes a symptom of prostate cancer and warrants further investigation. Failure to conduct testing to rule in or out cancer may rob the patient of an early diagnosis, treatment and potentially his life and may be medical negligence.

Timely diagnosis also means that if the cancer was found when it should have been, the outcome would have been different. For example, a woman sees her doctor with a breast lump, and the doctor simply assumes it’s a fibroid lesion, but the next day the patient sees a doctor who’s concerned and orders a fine needle aspiration which reveals cancer. If that day delay didn’t change the outcome, the timing of the failure to diagnose is not actionable.