A doctor’s failure to properly diagnose cancer may or may not give rise to a viable medical malpractice lawsuit. This article discusses what does (and what does not) lead to liability for a patient who has suffered harm in such cases.
One of the key questions in a medical malpractice case is the doctor’s professional standard of care. A doctor is required to do what a reasonable doctor would do in the same circumstances.
As with most medical malpractice cases, a case based on failing to diagnose cancer (or making an incorrect diagnosis) will require the plaintiff and the defendant to present testimony from an expert regarding what a reasonable doctor would have done.
Simply because the doctor’s diagnosis later turned out to be incorrect does not necessarily mean the doctor breached the professional standard of care, or behaved unreasonably under the circumstances. Some cancers can be quite difficult to detect or distinguish at various stages, and some benign conditions like cysts can sometimes reasonably be mistaken for cancer. Mistakes happen, but unreasonable mistakes may rise to the level of medical malpractice.
For a doctor to be found liable for malpractice, the plaintiff must suffer an injury that would not have occurred without the doctor’s breach of professional care. This requirement can be complicated in a cancer misdiagnosis case: although a doctor may have been unreasonable in failing to diagnose or misdiagnosing cancer, the consequences for the plaintiff might be statistically the same as with a proper diagnosis.
This is particularly true for cancer types with a high fatality rate. Generally speaking, if the patient had a less than fifty percent chance of surviving regardless of diagnosis and treatment, even a doctor that breached a duty of professional care will not be held liable because the breach is not considered the real cause of death.
The plaintiff (or the plaintiff’s surviving family members) can also argue that the duration of the plaintiff’s life was shortened, the quality of the patient’s remaining life was degraded, or the plaintiff suffered a diminished or lost chance of survival. Some states agree that these kind of “lost chance” cases can be brought while the plaintiff-patient is still alive. In fact, the cancer misdiagnosis does not necessarily need to be fatal -- some states allow the plaintiff to be compensated for living under the threat of cancer if it is more likely than not a proper diagnosis would have removed the threat.
While these types of arguments can be successful, they can also lose for being too speculative and for being unaccompanied by convincing medical proof. Of course, modern cancer treatments have greatly increased cancer patients’ odds of living longer or recovering completely, so it is not necessarily true that a majority of medical malpractice cases based on cancer misdiagnosis are successfully defended for being too speculative. As with most areas of law, the outcome depends entirely on the circumstances of the case.
Another type of cancer misdiagnosis occurs when a doctor incorrectly determines a patient has cancer when he or she actually does not. If the misdiagnosis was a breach of the professional standard of care, the doctor will be liable for any damages caused by unnecessary surgeries or other treatment. The doctor might also be found liable for the fear and anguish the patient suffers while under the false impression that he or she has a potentially fatal disease.
There are some kinds of personal injury cases that you can handle without a lawyer, but a medical malpractice case is not one. Both sides in any given medical malpractice case will require an experienced medical malpractice attorney. This is especially true for cancer misdiagnosis cases.
These type of cases have an extra layer of complication -- above and beyond the already very complex requirements for medical malpractice cases -- due to the difficulty of proving causation and the variety of different approaches taken by the various states. A plaintiff/patient should consult a local and experienced medical malpractice attorney instead of trying to evaluate the case on his or her own.