The Elements of a Cancer Misdiagnosis Case
To prove any medical malpractice case, the plaintiff must show through expert testimony that the health care provider failed to follow standard care, and that the failure caused an injury. In the cases alleging cancer misdiagnosis, the injury is usually that the cancer progressed after the misdiagnosis, so that the patient became sicker, lost a chance of a cure, or died. Loss of chance of a cure is a difficult to prove in many cancer misdiagnosis cases. It is a medical fact that some cancers are essentially incurable. The legal test for loss of chance of a cure varies. In some states, the plaintiff must prove that, more likely than not, the patient would have been cured but for the misdiagnosis. This can be a very difficult test to satisfy. In other states, the plaintiff only has to prove that the patient lost a substantial chance of a cure. Because the medical and legal issues in cancer misdiagnosis cases are so difficult, expert legal representation is essential to success.
Misdiagnosis of breast cancer is the most common of all allegations in medical malpractice cases. Doctors may fail to order biopsy of a breast lump, or may ignore changes in the appearance of a breast. Radiologists may fail to see or report an abnormality on a mammogram. A report of an abnormal mammogram may be ignored by the doctor who receives it. Patients have lost healthy breasts because biopsy slides were mixed up due to hospital error.
Coughing blood is a warning sign of possible lung cancer, and almost always requires an immediate chest x-ray. Chest x-rays may be misinterpreted, or follow up studies such as a CT scan may not be done. Some people assume that because most cases of lung cancer are caused by smoking, smokers cannot win cases for misdiagnosis of lung cancer. This is simply not true. The fact that a patient is a smoker is all the more reason why doctors should be concerned about possible lung cancer. But, lung cancer is so often deadly, that it is difficult to prove causation in states requiring the plaintiff to prove that more likely than not the patient could have been cured if not misdiagnosed.
Colon cancer is one of the most curable forms of cancer, if it is found early enough. Colonoscopy can find colon cancer in its early stages and sometimes can cure it without surgery. Failure to perform a colonoscopy in a patient with specific indications, or failing to perform a thorough colonoscopy can result in colon cancer going undiagnosed and untreated. Although screening colonoscopies are now recommended for everyone over 50, malpractice cases alleging failure to perform screening colonoscopies have rarely been successful.
Skin cancer is increasingly common. Malignant melanoma is a dangerous type of skin cancer, most prevalent in fair skinned people who have a history of sunburns. Any suspicious mole or skin growth should be biopsied. Sometimes the biopsy is misread, or the biopsy report is ignored. Because malignant melanoma can be cured if it is caught early, it is easier to prove causation in such cases than in cases involving many other types of cancer.
What to Do
If you believe you or a loved one have been the victim of a cancer misdiagnosis, you should promptly contact an attorney who is experienced in handling cancer misdiagnosis cases. There are statutes of limitations that will bar late claims, and they vary from state to state. It is best to find an attorney in the state where the medical treatment occurred, but if that is far from you, find an expert local attorney who can refer you onward if necessary. Do not spend time or money getting medical records yourself. Medical malpractice lawyers almost always offer free consultation and accept cases on a contingency fee basis. Most attorneys will get the records for you if they believe there is a reasonable chance that you have a case after speaking with you.
What to Expect from a Lawyer
Experienced attorneys can usually identify weak cases right away and will explain the problems they see. Many cases are rejected after an interview only. If a case seems to have merit, is essential for the attorney to review the records carefully and consult with one or more experts before forming an opinion whether to proceed with a lawsuit. Case review can be a time consuming process. Experienced lawyers try to be careful to undertake only strong cases. Cancer misdiagnosis cases are almost always vigorously defended, and few such cases are settled early on. There is no guarantee of success in any lawsuit. Any lawyer who boasts about himself instead of listening to you, who promises you success, or suggests a specific sum of money that your case may be worth is best avoided. The right lawyer to retain in a cancer misdiagnosis case is one who has a proven record of success, and who understands your personal situation as well as your lawsuit.