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Medical malpractice claims involving delayed diagnosis of cancer

Steven E. North, Esq. and Laurence M. Deutsch, Esq.


The failure of a physician to diagnose cancer in a timely fashion has resulted in many successful medical malpractice cases managed by this office. The general posture of such cases is that had the cancer had been diagnosed earlier – as it should have been – the patient’s prognosis would have been substantially better.

Particularly successful scenarios have involved cases of delayed diagnosis of breast cancer and colon cancer. Both breast cancer and colon cancer are often amenable to treatment, especially when caught in the early stages. And, both breast cancer and colon cancer have been the focus of public health campaigns that tend to make juries unforgiving of doctors who ignore screening guidelines that are known even to some patients. We also, however, have brought successful cases in many other cancer contexts as well.

The basis of the claim is that the patient lost a significant opportunity for a more favorable outcome, though one cannot know for sure what course the disease would have taken. It is, however, sufficient for a medical oncology expert to weigh in on the probabilities of a substantially better outcome had the condition been diagnosed sooner or even “loss of chance of cure” because it hadn’t.

The elements of damages are multifaceted. The emotional impact of having terminal cancer is enormous in and of itself. Knowing that such a death might have been avoided with a well-timed diagnoses makes it more horrific and overwhelming. There are other less apparent damages that are also integrated with such a claim. If a patient suffered the ravages of chemo, radiation, or additional surgery that might not have been necessary, damages may increase.

Nearly any cancer treatment can produce subsequent and severe effects. The toxicity of chemotherapy can wreak havoc on organs not affected by the cancer. It can weaken one’s heart, heightening the chance of congestive heart failure and impairment of the coronary arteries. It can lead to hypertension, a precursor to stroke and/or organ damage, and it can weaken bones, creating joint pain and a higher risk of injury to the muscular skeletal system.

Both chemotherapy and radiation therapy can cause severe damage to the lungs and have long- term side effects on the brain – including cognitive difficulties – nerves, and spinal cord. These and other therapies can increase the likelihood of a patient developing another primary cancer or negatively affect his or her sexual function and/or ability to reproduce; women may experience early menopause. Other adverse effects include dental and visual problems, digestive problems and emotional affect.

Failure to diagnose cancer in a timely manner is one of the most serious types of medical malpractice claim and often results in a significant damage awards when liability is established.

Source: “Long-Term Side Effects of Cancer Treatment,” Cancer.net