Can I sue my doctor for failure to screen for colorectal cancer?

Asked almost 4 years ago - Corning, NY

My mother in law is 52 years old. She went to her physician about a year ago complaining GI problems. He told her it was IBS and not to worry. She suffered with "IBS" for about 6 months before going back when problems became worse. He then told her again not to worry, and she should wait until the fall (about 6 months) to have a colonoscopy. About 3 months after that she went to the ER one night with severe bleeding, and following numerous tests/scans and a colonoscopy was diagnosed with stage 4 rectal cancer, also now in her liver and lungs.

We are all horrified that the doctor did not recommend a colonoscopy as a screening immediately when she came to him about a year ago, especially when she is over the 50 age mark. Do we have a case for a malpractice suit?

Attorney answers (6)

  1. Joseph Jonathan Brophy

    Contributor Level 20

    1

    Lawyer agrees

    Answered . Your mother needs to consult with a well qualified medical malpractice lawyer. It is certainly possible that she has a case, depending on what the medical records show. Medical malpractice cases are extremely fact-specific. The elements are a departure from standard care causing an injury. There are well-known guidelines out there for colonoscopy screening of persons over 50 but they are not strictly followed in the community. Whether failure to screen is a departure from accepted practice depends upon the individual's personal and family medical history, symptoms and complaints. In the case of a missed cancer, the causation issue can also be very difficult. Many malpractice lawyers follow a rule of thumb that a delay in diagnosis of cancer of much less than a year is not a provable case, but that is not a definite rule. Your mother needs to see a good malpractice lawyer sooner than later. You mentioned that you are in Corning, but not where your mother is. I don't know any medical malpractice lawyers in the immediate Corning area, but I have a large network in New York, so if you have difficulty finding a qualified lawyer in her area, please e-mail me or give me a call.

  2. Richard S. Jaffe

    Pro

    Contributor Level 13

    Answered . The definition of medical malpractice is an act or omission by a health care provider that deviates from what is the accepted standards of practice in the medical community. This act or omission then causes injury to the patient. Medical malpractice is basically professional negligence by a health care professional that leads to an injury or complications on the part of the patient.

    In a medical malpractice suit there is the plaintiff and the defendant. The plaintiff is the patient or the family of the patient while the defendant is the health care provider. For a case to meet the medical malpractice definition the plaintiff must be able to prove their case. Some of the things that the plaintiff will need to prove include:

    * A duty was owed by the hospital or health care provider.
    * The duty was not acted upon. In short, the provider failed to provide the standard of care.
    * The breach of duty caused an injury to the patient
    * Losses. The plaintiff must be able to prove that there were damages, otherwise a medical malpractice suit is not applicable even if the provider was negligent.

    From the facts you have given, it is difficult to determine whether the doctors/hospitals did anything negligent, although it certainly sounds like it is potentially a strong case. You should consult with an attorney in your area who has previously handled these types of cases. The attorney will look at the medical records and go over them with a medical expert to determine whether there were any departures from what is normally accepted practice in your area for this type of medical situation.

    Using the search functions on this website at www.avvo.com for a malpractice attorney is a good approach to finding an attorney. However, if you feel more comfortable, you can contact me directly at jaffelaw1@aol.com or at my telephone number which is shown on my Avvo profile. You can also review my website at www.lcjLawFirm.com which has a section devoted to Medical Malpractice in New York.

    I encourage you to act quickly, so that you can relate your recollection of what had occurred does not fade. I would also want you to be sure that time deadlines for filing such a case are met.

    Thanks.
    -rich

    Richard S. Jaffe, Esq.
    Law Office of Cohen & Jaffe, LLP
    www.lcjLawFirm.com

  3. Jason Alexander Richman

    Contributor Level 12

    Answered . I agree with the thoughtful answer given by Mr. Brophy.

    He correctly stated the "rule of thumb". However, even beyond that rule, where there is a roughly 9 month delay in diagnosis followed by a correct diagnosis with a particularly advanced cancer such as your mother has now received, the chances of a viable law suit go down dramatically. This is especially true with typically slow progression cancers such as Colo-rectal cancer.

    However, every case is different. Sometimes depending on the circumstances cases with even shorter delays can result in meaningful lawsuit recoveries. If you would like help finding a lawyer to help in evaluating your case I can certainly help.

    I am located in the Rochester Area not very far from you. I have handled Medical Malpractice, among other cases, for most of my career. I can help find you a good Southern Tier attorney.

    Jason A. Richman

  4. Patrick A Malone

    Pro

    Contributor Level 8

    1

    Lawyer agrees

    Answered . I recently prosecuted such a case successfully, so the short answer is yes, your mother in law may have a case. However a key issue is going to be determining whether the delay in diagnosis, which sounds like around nine months from your account, made a difference in letting the cancer go from curable to essentially incurable. She will need to obtain all her relevant medical records and imaging studies and then consult with a qualified medical malpractice lawyer, who will likely want to consult with a medical oncologist and/or a colo-rectal surgeon. Good luck!

  5. Jeffrey A. Mitchell

    Pro

    Contributor Level 9

    1

    Lawyer agrees

    Answered . Generally, the standard of care requires a patient's primary care physician to perform routine colon cancer screening for all patients above 50 years of age. This is generally true even if the patient is not exhibiting symptoms or does not have a family history of colon cancer. Of course, there are exceptions to this and each case should be viewed on its own facts.

    I would strongly recommend that you get a copy of your mother in law's records and send them to a locally qualified medical malpractice attorney. One of the key issues for an expert to decide is whether the 3-9 month delay in diagnosing the colon cancer made a difference in her prognosis or survival rate. This will depend on the type of cancer, its size, exact location, and other factors. Different cancers grow at different rates. Colon cancer can be slow growing. If that delay made a significant difference in her survivability, then you may have a case against that physician. Good luck.

  6. John Scott Wallach

    Contributor Level 8

    Answered . Your mother in law should consult with an experienced medical malpractice lawyer in her area immediately. While there are many factors to evaluate to determine if there is a viable case as described by other responders to this post, given her condition of Stage 4 cancer there is little time to waste. Her memories and knowledge of her interactions with the doctor need to be fully examined and preserved by deposition or video. Otherwise, even if there is a case her statements to friends and family about what the doctor told her could be ruled not admissible in court.

    You did not mention what type of physician your mother in law had been seeing--a gastroenterologist, family practitioner, internist, her ob-gyn? Did sher initially respond to treatment for what the doctor considered IBS (ie, prilosec, nexium or similar?) Any family history of colon cancer? Was this her first bout of stomach trouble?

    One question is if the standard of care requires immediate colonoscopy at the first sign of stomach problems, or if it is appropriate to try conservative measures first. Often colon cancers are extremely slow-growing (ie, several years), so a few months delay often makes no difference in the outcome. If she tried conservative treatment but continued to get worse, the defense will surely raise the 6 month period she waited to return to the doctor as a defense.

    It sounds like the second six month period when she came back may be a problem for the doctor. However, the question is if he had sent her for colonoscopy at that time and her cancer diagnosed and treatment started, would that have been enough time to have significantly affected the disease progress. This second six month period will be more problematic, as many experts may say that a six month delay in most colon cancers is too short to have made a siginificant difference in outcome.

    I wish your mother in law and your family good luck, medically, legally and personally in his difficult situation.

    John Wallach
    St. Louis, MO

    .............................................

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