Posted by Bill Sandweg on 02 January 2023.

Cancer is a terrible set of diseases.  Some are relatively treatable, if detected in time, while others are aggressive and nearly always fatal.  Medical malpractice does not cause cancer but medical malpractice can turn a treatable cancer into a death sentence.

The cancer cases that I see almost always involve the same issue:  delay.  There was a delay in discovering the cancer or a delay in recognizing the cancer, or a delay in beginning treatment.  It is why people come to see me.  In order for the delay to be the basis for a case that I can take and win for my client, the delay needs to have caused some demonstrable damage.

There is no question that the sooner a cancer is detected and treatment is begun, the better.  Even the most aggressive defense expert will have to admit that.  For that reason, the longer the delay, the harder it is for the defense to argue that it made no difference to the patient.  You never want to see a long delay in diagnosing cancer or beginning treatment, but it clearly makes for a stronger case.

Sometimes, the delay was brief.  Even a brief delay can cause damage, but it is much more difficult to prove.   When the cancer was not detected, it is especially difficult to prove how advanced it was at the time the doctor negligently failed to detect it.  We can and do try to work backwards from the status of the cancer when it was discovered to determine its stage at the time of the missed diagnosis, but this is always subject to dispute by the defendants, who argue that the cancer was highly advanced at the time of the alleged failure to diagnose.

In addition to the difficulties of proving how advanced the cancer was at the time of the failure to detect it, there are always differences of opinion about how aggressive it was and whether the delay made a difference in the patient’s outcome or not.  If there was a death due to the cancer, defense lawyers almost always argue that the cancer was highly aggressive and that the patient was therefore not likely to survive anyway.  If the patient is still alive and in remission at the time of the lawsuit, the defense attorneys may argue that they have been cured and that little damage has occurred.  The worst case for malpractice defense lawyers is when the patient is still alive at the time of trial but is clearly nearing the end of her or his struggle with cancer.  Other than arguing the doctor did nothing wrong, there are few arguments available to them that don’t sound heartless.  Defense lawyers and insurance companies usually try to settle these cases.  Cancer cases are never more valuable than just before trial with a patient who is near the end of life.

The doctors who are most likely to fail to detect cancer are not usually specialists in cancer.  Those doctors are usually right on top of the problem and are highly skilled in recognizing the signs of cancer and in treating it.  The doctors most likely to get into trouble with cancer diagnoses are the doctors who are not very experienced with cancer and who are not looking for it.  They see signs and symptoms that may be cancer but they don’t recognize them as such.  They reassure their patients that it is nothing and they fail to send them to doctors who are more familiar with cancers and who can recognize and diagnose cancers.

I have seen many different failings by doctors in the cancer cases I have handled over the years.  I had one in which a doctor misidentified a melanoma on the sole of the foot as a wart and tried to burn it off.  It, of course, came back later with fatal results for the young patient.  I have had a number of cases in which radiologists failed to notice the presence of lung tumors on chest x-rays being performed for reasons other than cancer screening.  When you are looking to see if there are any fractured ribs, it is a lot easier to miss a small tumor than when you are looking for possible tumors.  I have had cases in which the pathologist failed to properly identify cancer in a biopsy specimen.  The patient was told that the biopsy was negative.  Only when the cancer spread and the biopsy was re-examined years later was the mistake discovered.  Finally, I had a case in which the doctor received the report of the pathologist that the biopsy specimen was cancerous, but became confused and thought that the patient had already been notified, so he did nothing.  If you can think of a way for human nature to mess things up, it has probably happened when it comes to cancer diagnosis.

There are a few takeaways here.  First, if you have a concerning symptom, be polite but firm in asking the doctor to confirm that it is not a problem.  Human nature being what it is, we are usually so happy to have the doctor reassure us that we fail to ask her to confirm it or to get a second opinion.  Second, don’t assume that no news is good news when it comes to a biopsy.  Just because the doctor’s office did not call to tell you the biopsy was negative, do not assume that it was negative.  It may have simply gotten lost in the shuffle.  It is your health.  Follow up on all biopsies and make sure you know the result.  I hope you  never need to see me about a missed diagnosis of cancer, but, if you do, my address is at the bottom of the page.