After an annual cat scan as a follow up to my previous colon cancer I was told I had a lesion on my liver. My oncologist referred me to a surgeon who did an mri and lab work and concluded a resection needed to be done, and we would discuss chemotherapy once the tumor was staged. The process of having the cat scan and scheduling of my surgery took nearly 2.5 months during which time I was led to believe i had liver cancer. Survival rates were discussed, normally its 7-9% survival for the first year, but my liver was otherwise healthy so I was told 20-30% survival rate for me! Given the dire outlook I began to make plans, paid off bills, told relatives and friends, mom closed a family business I had planned to take over. Two days before my surgery the surgeon called. After comparing my past 4 years ct scans he noted this lesion had been there all along and had not changed, therefore he didn't think it was cancer. He wanted to watch which we have done and now nearly 2 yrs out I'm happy to say it remains unchanged. I don't have cancer! I'm thrilled of course, but also appalled at the angst and turmoil I was thrown into because my oncologist didn't bother to compare past tests!
Remain thankful that you are in remission. Apparently, from your post, both your oncologist and the surgeon initially concluded that you needed a resection. While further diligence revealed a contrary plan, the "damages" that you have sustained will likely not amount to the sort of substantial and permanent injury that could justify a medical malpractice claim.
Dr. Zaheer A. Shah, MD, JD (Attorney and Physician): The author of this answer is an Attorney-at-Law, licensed to practice law only in the state of Arizona as well as a practicing physician. Unless both you and the author have signed a formal retainer agreement, you are not the author's client, and the author's discussion of issues does not constitute legal advice. Additionally, any medical opinions rendered on this forum in response to a particular question does not form the basis of a doctor-patient relationship with the Asker. Opinions expressed herein are solely those of the author, and are neither privileged nor confidential. While an effort is made to offer accurate information, there is no guarantee as to accuracy.
That is great news, but be mindful the costs of a lawsuit likely would far exceed a recovery, but you can have it evaluated.
You should be extremely happy that you are in remission. Albeit, you may have a claim for infliction of emotional distress; in most states, such claims are not viable without another cause of action to substantiate the claim for infliction of emotional distress. Therefore, this misdiagnosis may not rise to the level of permanent injury under the medical malpractice claim.
The complexity of human disease processes and the incomplete state of medical knowledge even by highly skilled practitioners makes it inevitable that there will be mistakes in diagnosis. A mistaken diagnosis is not per se malpractice; if it were, no one would practice medicine. Physicians have plenty of room to make mistakes which do not amount to malpractice. The question is, first, whether the physician's misdiagnosis fell short of the standard of care, and second, if it fell short of the standard of care, whether the misdiagnosis caused damages. Beyond that there is the question whether a jury would award you damages for your claim, meaning, the potential exists for a jury to conclude that you should be grateful that you do not have cancer, and to award you nothing.
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