VETERANS SERVING VETERANS

In cancer malpractice cases, the healthcare provider certainly didn’t cause the patient to get some type of cancer.  Rather, the ultimate issue is whether different or earlier treatment would have changed the ultimate outcome, which is frequently death. 

 

Cancer cases generally fall into two broad categories:

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Delay in diagnosis and treatment

As a general rule – and one that is actually a bit too simplistic - if a cancer is diagnosed at an earlier stage, then there is a better likelihood of successful treatment.  Delays can happen for many reasons and the impact of a delay is quite variable.  Probably over 90% of the cancer cases we take involve some sort of delay in diagnosis or treatment.  Such cases can be further sub-divided:

• Failure to do appropriate screening.  If the standard of care mandates screening and it was not done, then there is an obvious delay.

• Misreading of radiology or pathology studies.  The radiologist or pathologist does not correctly see and report what is there. 

• Not following up on abnormalities reported in radiology or pathology studies.  The radiologist or pathologist does correctly see and report an abnormality, but the clinical doctor does not follow up.

• Ignoring potential symptoms of cancer.  If a patient has symptoms consistent with cancer, then a doctor needs to investigate those symptoms.

 

Incorrect treatment

Again, probably being a bit too simplistic, the best treatment results in better outcomes and the wrong treatment is detrimental.  Such cases are much less common than delay cases.  A pure incorrect treatment case is relatively rare, but more frequently delay cases can involve treatment issues. 

 

We have handled all kinds of cancer cases, but here is a non-inclusive list of the most common ones we see:

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> Prostate cancer

Typically, this involves a primary care doctor either not doing any screening or ignoring a rising PSA (prostate specific antigen) blood test.

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> Colon cancer

Often this involves a doctor’s failure to refer a patient for a colonoscopy.

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> Lung cancer

Most commonly this involves either x-rays being misread or primary care doctors ignoring abnormal findings that have been reported.

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> Bladder cancer

Classic situation we see?  Blood in the urine that is not appropriately evaluated.

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> Breast cancer

Misread mammograms are what we see most often.

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> Melanoma

There can be any number of issues in these cases both in terms of delays in diagnosis and deficiencies in treatment. 

Blood cancers.  What is interesting about these cases is that there are often pre-cancerous conditions that were seemingly not addressed by the healthcare providers, resulting in the development of a full-blown cancer.

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> Liver cancer

Some patients with certain conditions are supposed to get particular types of screening and when it is not done, the delay in treatment can be deadly.

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As noted above, this list is not inclusive.  There are many more types of cancer cases we have evaluated and handled.  Every case is different and the fact that someone has an unusual type of cancer does not, by itself, mean that they do not have a case. 

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We have learned a lot about handling these kinds of cases and I will share some of our knowledge:

 

1. Not all delays are created equal.  The impact of a delay is the single biggest factor in most of these cases.  A delay has to be long enough that we can prove the cancer grew in the interim and the patient’s prognosis was worse or a death was caused because by the time of diagnosis the treatment options were impaired or limited.  How long is that?  It all depends on the type of cancer.  In some cases, a few months can make a difference.  In others, we might need to see a couple of years in order to make the necessary causal link.

2. There are many types of cancer and they are all different.  In reality, there is no such thing as a diagnosis of “cancer.”  There are, for example, breast cancers and lung cancers, but even in broad categories there are many sub-types.  Some cancers are very common.  Some are exceedingly rare.  While a lawyer is not a doctor or scientist, he or she has to have some sense of what they are dealing with because what you know about one type of cancer may not apply to other types. 

3. Not all cancers have an effective treatment.  These are the saddest cases.  Sometimes we have had cases where the care was extraordinarily bad, but the reality was such that there was nothing anyone could have done to change the outcome.

4. Recurrent cancer cases are very difficult.  We often see cases where there is a delay in diagnosing a cancer which has come back after treatment.  We have been successful in a couple of such cases, but there are more where we were not.

5. Cancer knowledge is surprisingly uneven.  With regard to some types of cancers, there is a huge body of knowledge and the literature is extensive.  There are dozens of academic physicians with highly specialized expertise.  For some, the information is much more limited and sometimes there are only two or three doctors in the country with true subject matter expertise.  A lawyer handling these cases needs to be able to find that information and work with those experts. 

6. Diagnosis and treatment theories are constantly changing.  In my 30 years of dealing with these cases, the accepted modalities of diagnosing and treating various types of cancer have changed repeatedly.  It is not uncommon to have a situation where a patient was seemingly diagnosed or treated appropriately, but by the time we are contacted such treatment is no longer considered to be the standard of care.

7. Cancer screening is not always effective – and is sometimes controversial.  Screening saves lives.  Right?  It’s not always so simple and for almost any of the common screening modalities there is some controversy about the effectiveness, if not overall than certainly with regard to certain demographics.  Moreover, the standards for appropriate screening are often a moving target. The effect of this in a lawsuit is that it is not always as easy as one might think to fault a practitioner who seemingly failed to comply with “standard” screening protocols.

8. A good oncology expert is hard to find.  Proving any malpractice case means you have to have the right experts.  In a cancer case that frequently means you need an oncologist, a doctor who specializes in treating cancer.  Finding one who is willing to help on these cases is often a challenge.  Even for us it is not always easy, despite an extensive list of contacts.

9. There are frequently statute of limitations and/or statute of repose issues.  Because these cases often involves delays measured in years, there are sometimes implications as to when the statute of limitations started running.  Depending on where a case arises from, cases can be barred by a statute of repose.  Statutes of repose bar any action after a given period of time regardless of when the negligence is discovered.  The application can be very harsh.   

 

Cancer cases are a challenge

They are not easy and in recent years many plaintiffs’ lawyers simply don’t take them at all.  The science is not easy and these cases frequently involve coordinating various experts.  Even more so than in other areas of law, knowing what you know is important.  But knowing what you don’t know is more important.  We relish the challenge of these cases.