Legal Articles



August 12, 2011


THE FAILURE TO DIAGNOSE CANCER

A Medical Legal Perspective
“I’m afraid I’ve got some bad news for you,” the doctor says stoically. “You have cancer. We need to talk about your options.”

It is as if the world slowed, but at the same time, everything is a blur. You go numb. You listen but do not hear. It is among the worst days of your life. You go home, and let the news sink in. Then you begin to wonder -- why didn’t I listen to the doctor, and ask more questions when I was there? I have so many questions now; maybe I should make a list; I need to call my family; I need to get on the internet and learn about this; and finally, why did it take so long for them to finally figure this out? Why did we waste so much time? Why didn’t my doctor listen to me?

You have cancer, the disease that always happens to someone else. And when you think about it, the handwriting was on the wall: there were the telltale signs; the visits to the doctor with vague complaints, and not a lot of questions asked, your doctor seeming distracted; there were meaningless prescriptions and useless tests; your doctor didn’t seem concerned at the time, but now, you realize, they should have been alerted; in hindsight, after a little research, your symptoms seem classic -- what physician couldn’t have put these pieces together? And you’re the one paying the price. You’ve got cancer, and you shouldn’t -- your doctor could have seen it coming, the disaster nipped in the bud.

Sounds like a slam-dunk case for a lawyer, doesn’t it? Not so fast, as they say. We have a few things to talk about, and possibly more bad news of a different sort.

I. The Medical Legal Issues
Having cancer is never a good thing -- no one will argue with you there. And it causes you to come face to face with some of life’s essential questions: Am I going to die? What about my children and the rest of my family? Have I done what I needed to do? What did I do to cause this? Is there something else I should have done? Should I have known this was coming? Should my doctor have seen it?

These are the natural questions that come with any diagnosis of cancer. They usually come within the first days or weeks or diagnosis, and it is not unusual to have those feelings, followed by anger or frustration. But once things settle down, no matter how devastating the news, we all need to recognize a basic fact -- your doctor didn’t give you cancer. Call it fate, a Greater Plan, genetics, lifestyle or whatever else you want to label it – it was not your doctor, and not the health care system. While health care providers can be criticized for a lot of shortcomings, one thing they have not managed to accomplish is the ability to inflict cancer on people, unless, of course, we’re talking about a figurative sort of disease.

This is only the first of several tough realities you have to deal with, none more important than your cancer. But when you finally get around to thinking about the justice system, not the immediately more important medical system, there are some equally tough practical considerations you’ll need to face: Sure, you reluctantly agree, your doctor didn’t give you cancer, but couldn’t they have done something? Why didn’t they listen to you? Why didn’t they order another test, or ask more questions? Why didn’t they even consider the worst when there was so much at stake?

So, you admit, your doctor didn’t give you cancer. What else is there you need to know? A lot. The so-called failure to diagnose cancer, or, as more often the case, the delay in diagnosing cancer, is one of the most common inquiries we get. Within the recent past, our office has handled cases involving the failure to diagnose metastatic osteosarcoma, instead labeling it a benign cyst; the failure to diagnose a virulent form of thyroid cancer, diagnosing a harmless goiter;and a metastatic lung cancer, the imaging studies calling it pneumonia. In each case, the patient was either terminal, or deceased, by the time the legal case unfolded, the family members left to cope. But they had so many more issues to deal with.

II. Legal Issues and Failure to Diagnose Cancer
The failure to diagnose cancer is, as some say, kind of a slam dunk, and at least, not all that difficult, particularly given the benefit of hindsight. Not really.

Did your doctor not pay attention to your symptoms? Did you have the scratchy throat, the unexplained bump in the skin, the lingering cough, the wound on your skin that wouldn’t heal? That was cancer, wasn’t it? Who should know better than your doctor?

These are the ways physicians classically fail to diagnose cancer, and it can be reduced to two essential shortcomings: first, the failure to connect the dots, or in other words, relate the symptoms to a developing cancer; or second, the misread of an imaging test, calling something else; a cyst, a goiter, a lypoma or some other benign condition, when in fact it is a brewing cancer.

Relatively speaking, this is the easy part of the case, but also the point at which most clients stop the analysis. Unfortunately, it’s a lot more involved.

We can retain primary care physicians or radiologists to talk about the science, and what your symptoms or imaging studies actually should have revealed. Expert witnesses might even testify your cancer was there to be seen, long before you were diagnosed. But where does that get you? Not as close as you might think to a viable legal case.

III. Causation in Cancer Cases
You still have a mountain to climb, both medically and legally. This is why many experienced medical malpractice attorneys do not handle the failure to diagnose cancer cases, and why we must be extremely selective: We’ve already established your doctor didn’t give you cancer; now, how did the delay in diagnosis make it worse? What is the proximate cause of your health care provider’s failure see the problem at an earlier point in time?

The reality is that doctors are much like the rest of us: none of us wants to assume the worst, especially if there are simpler, easier, less lethal explanations. Your throat hurts because you have a cold; you cough because you have an infection; you’ve had that lump for years and it’s harmless; everyone has a headache occasionally. This is the starting point for medicine. It takes more to order more, and that’s simply a fact of life.

Cancer is not readily diagnosed, despite its prevalence. For some of the reasons stated above, the diagnosis of cancer is usually one of elimination, the more common (and less lethal) explanations addressed first. More often than not, a diagnosis of cancer is both reluctant, and a process of elimination -- there was nothing else to explain your symptoms, which led to more exotic tests, and eventually, the grim diagnosis.

So, physicians are human, prone to look for a simpler, less problematic cause. Where does that leave you? The fact is no one walks into a doctor’s office and with one look or a few questions, your physician pronounces you have cancer. Typically, the diagnosis is indeed one of elimination and the process can take weeks or even months, with multiple tests and a constellation of symptoms gradually building. Cancer, the ‘C’ word, is never the first thing out of your doctor’s mouth, just as it wouldn’t be from your parent, or anyone else who cares about you. Before something that dire is found, some other, easier explanation need to be eliminated.

In the real world, the diagnosis of cancer is never immediate. Typically, there are exclusionary diagnoses and a series of confirmatory tests, including imaging studies and a building array of blood tests. When the bad news is finally delivered, it can be days, weeks, or even months from the time you recognize you had symptoms. What effect did this delay have on you?

Cancer is a disease of progression, of cells multiplying over millions of times. Cancer does not happen over days, or even weeks. Instead, it is a progression of events, some would say of genetic predisposition, happening over time. Some would also say the diagnosis was planted in your DNA, and there might be some truth in that. Did you mother have breast cancer? Did your father or grandfather have prostate cancer? There is an undeniable familial link.

So, shouldn’t your physician recognize the genetic link before you do? Probably so, but it takes time, the conclusion anything but immediate. Meanwhile, the outcome of a cancer diagnosis is not influenced by days, and in most cases, not even weeks or months. Rarely is it a matter of years. So, the question becomes, what effect was the misdiagnosis or failure to diagnose? It is an issue far more important than most clients recognize.

The law requires a misdiagnosis of cancer as some other malady, or the failure to diagnose cancer, be a proximate cause of damage. Stated in simpler terms, no harm, no foul. Instead, the patient must prove the ‘slam dunk’ misdiagnosis influenced the outcome: did it turn a limited cancer into metastatic disease? Was your cancer, over time, transformed from something treatable to something far more problematic? What was the value of a chance, of the opportunity to treat your cancer when it was less aggressive? Was your outcome pre-ordained from the moment the first cancer cell formed? This is the issue on which failure to diagnose cancer cases are won or lost -- not the ‘slam dunk’ you might think.


IV. The Medical Legal Team
It is an undeniable fact that with current medical knowledge, some cancers are more treatable than others, some outcomes more optimistic. This article is not intended as an expression of medical opinion, but most of us realize some breast cancers are more treatable than others depending on the tumor and extent of lymph node involvement; brain cancers rarely give cause for optimism; colon cancer can be detected early and treated; pancreatic cancer is a grim reaper. The list goes on.

What is your cancer? What is your prognosis under ideal circumstances? These are the hard questions. Like any other hard question, there typically is no simple answer, and for that reason, it requires the input of multiple expert witnesses: aside from issues of misdiagnosis, the more fundamental issues are typically addressed by oncologists, by cancer surgeons, and by pathologists based on primary tumor characteristics. The answers are usually far from clear, and almost always at significant expense.

So, if you or a loved one are suffering from cancer, you may do better to focus on getting well and overcoming your disease. At the least, acknowledge the obvious and focus on the legal premise: cancer is an unfortunate fact of life; was your prognosis materially changed by a delay in diagnosis or misdiagnoses? From a legal standpoint, that will be the ultimate question.

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