Posted by Bill Sandweg on 27 January 2020.
I see lots of potential clients with cancer diagnoses who wonder if they have a malpractice case or not. These are among the most difficult cases to win so the answer is not usually what the prospective client wants to hear. An unwelcome answer from me is added to the sadness of the cancer diagnosis. Not a good combination ever.
The first problem I face as a medical malpractice lawyer is that the cancer my client has was not caused by a doctor. The usual claim in a cancer case is that the doctor failed to recognize the presence of cancer and to treat it in a timely manner. Sometimes, but not often, this is a strong claim. The x-ray, CT, MRI or pathology test clearly shows the presence of cancer and someone just missed it.
More commonly, however, the mistake is not so clear cut. The test can be interpreted in more than one way. The shadow on the x-ray of the lung may be a cancer or it may just be a meaningless shadow. The pathology slide may show a very unusual presentation, which makes it difficult to correctly interpret the slide. The doctor defendant will be able to bring in colleagues who will tell the jury that the x-ray/slide does not show the presence of cancer. Our expert will say just the opposite and often the jury is left scratching their collective heads.
The defense in a missed cancer diagnosis case almost always argues that the patient’s experts are guilty of hindsight bias. That means that they have an advantage over the defendant doctor because they know the patient has cancer and where it is. They can go to the x-ray or slide and point out exactly where the cancer is. The defendant doctor didn’t know whether there was cancer there or not when he or she read the x-ray or reviewed the pathology slide. Juries tend to give a lot of credence to arguments about hindsight bias.
Lastly, and perhaps most importantly, my client has cancer. In order to prevail, I must prove that, had the doctor diagnosed the cancer when the doctor saw my client, things would have been different. That difference may be that my client would have been cured. That is rarely the case. More often than not, the most I can prove is that my client would have had a better chance for a cure or for a longer life than they do now. The defendant doctor, on the other hand, always argues that my client’s cancer was such that he or she had only a short time to live no matter when the cancer was diagnosed and treatment begun.
When evaluating a case, I must also keep in mind that my client has cancer and that his or her life may end soon. If my client dies before I can get the case to trial or before I can get the case settled, the value of the case changes, often dramatically. Some of the largest verdicts in malpractice cases have come when a dying patient gets on the witness stand and asks the jury for justice. It is powerful to see a dying person testify. On the other hand, more often the patient loses his or her race with death before the trial or settlement. When that happens, the patient’s pain and suffering claim dies with them. What is left is a wrongful death claim to be brought by their spouse or parents or children. While wrongful death claims can be valuable, they are not going to be as valuable as the claim of the patient who is still alive at the time of trial.
All of this means that I must push these cases as hard as I can to get them to trial as soon as I can. The defense pushes back as hard as it can and argues that it needs time to evaluate the case and to take the necessary depositions. The courts are sympathetic to the plight of the patient but wary of depriving the defendant doctor of the time necessary to prepare a defense. It is hard to get a priority for these cases.
Failure to timely diagnose cancer cases are hard but important and can be valuable in the right circumstances. If you have a diagnosis of cancer and think there may have been a delay, contact an attorney as soon as possible. The more time an attorney has, the more likely it is that the case can be tried or settled while you are still alive to see justice done.