Skip to main content

My mother was in hospital in july of 2009 had chest xrays, blood test they admitted her cause her leg was swollen

Brooklyn, NY |

my mother was in lutheran hospital in brooklyn ny july of 2009 had chest xrays and blood test they admitted her cause her leg was swollen

my mom is 77 years old.

july 2009 chest xray showed chronic interstitial change august 2009 chest xray showed lung atelectasis
november of 2009 she went to another hospital ny methodist for dehydration they took chest xrays and said she had stage 4 lung cancer, she died in december of 2009. do i have a malpractice case against the lutheran hospital she was in july they did not say she had cancer, they said she had copd.

+ Read More

Attorney answers 2


Failure to diagnose lung cancer is not an uncommon complaint in medical malpractice lawsuits. However, in any failure to diagnose cancer case (or delay in diagnosing cancer), the key issue is the time frame between the missed diagnosis and the actual diagnosis. The longer the delay in diagnosing the cancer means the patient lost more of an opportunity to undergo successful treatment of the cancer.

In most instances, these cases are worth pursuing only where the delay is substantial. Depending on the type of cancer and how rapidly it spreads, that time frame could range from 9-12 months. With this type of delay, an oncologist can testify in court that if the cancer was caught 12 months earlier, the patient's chance of recovery/cure were substantially higher. This time frame can also correlate to the staging of the cancer. In other words, if the cancer had been caught 12 months earlier, it would likely have only been a stage one or two. The delay allowed the cancer to grow and/or spread and now it is a stage three or four.

In your case, the four months delay likely did not deprive your mother of any chance of survival. Stage Four is very serious and statistically has a much lower survival rate. It is almost certain that she was a stage Four in the July/August time frame. Thus, it would be difficult to find an oncologist to testify that the obvious miss of this diagnosis caused your mother additional damages.

Remember, in a lawsuit, the plaintiff (patient) not only has the burden of proving that medical malpractice occurred, but also that the medical malpractice caused damages to the patient. Given the complexity and expense of these cases, as well as a juror's natural bias in favor of doctors, damages must be substantial in order to justify proceeding with these cases.

It may be worth asking her treating oncologist if her cancer had been caught in July whether that would have made any significant difference in her prognosis. He will likely tell you that it would not. If he says it would have made a substantial difference, then you should contact a local qualified medical malpractice attorney immediately. I wish your mother the best in beating this horrible disease, 77 is young.


Determination as to whether there may be a valid claim here can not be made in the context of a summary of facts posted and then my giving you an opinion. I highly suggest that you seek out a medical malpractice attorney in NYC for a consultation for 2 reasons: (1) at the very least to set your mind at ease that you have obtained professional advice, and (2) if the attorney decides that it is worth investigating, to obtain all of the required medical documentation at the earliest possible moment, before things can happen to these records.

This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.

Get Avvo’s 3-part personal injury email series

A roundup of the best tips and legal advice.

Personal injury topics

Recommended articles about Personal injury

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer