In September 2015, a veteran got a chest x-ray at the Hampton, Virginia VA Medical Center. The x-ray showed that the veteran had a large mass in the right lobe of his lung. The radiologist’s report was quite specific:
Comparison was made with the study of July 30, 2010. There is a lobulated 6.0 x 6.2 cm mass in the posterior lateral right upper lobe which was not present previously. The left lung remains clear. There are no pleural effusions. The cardiomediastinal silhouette is normal. Osseous structures are unremarkable.
Impression: Right upper lobe mass highly suspicious for malignancy.
Despite the explicit report of a mass “highly suspicious” for cancer, none of the veteran’s VA healthcare providers did anything. Nothing.
Nine months later, the veteran was sick. He was having difficulty breathing and he presented to the emergency room of a nearby private hospital. His lung cancer was almost instantly diagnosed. Sadly, by then it was at a very advanced stage and he only survived for about another month. He left a wife of many years and two adult children.
Another law firm referred the case to us. We filed a claim with the VA. Frankly, despite the egregious negligence involved, we had some reservations about the case. For over 30 years I have been in involved in hundreds of malpractice cases relating to the diagnosis and treatment of various cancers. We knew from the start this would not be an easy one.
Cancer cases can be tricky. There are lots of traps for the unwary or inexperienced lawyer. Often, you have a missed diagnosis that is not just negligent – it is appallingly negligent. I would say that about this case. However, what is critical in these cases is that the plaintiff has to be able to prove that the delay in diagnosis changed his or her cancer prognosis or treatment. For example, no matter how horrific a misdiagnosis might be, if there was only a delay of a month or two before the patient got the right diagnosis and treatment, then proving that the delay mattered is almost always impossible. They would have gotten the same treatment if the cancer had been diagnosed earlier and no reasonable doctor would be able to say that such a delay makes a difference in the patient’s ultimate outcome. Put crudely: these are “no harm – no foul” situations. Explaining that to prospective clients is often not easy. We have to do it frequently.
In this case, the nine-month delay was problematic, especially for a lung cancer case. The mass that was ignored was a big one. Putting on my old defense lawyer hat, I would have expected the government to look hard for an oncologist who might say that the cancer was already metastatic – that it had spread to other parts of the body – and the die was cast with this patient. Nothing would make any difference. Especially in an FTCA case where there are no juries, such evidence from a credible expert might find traction with a federal judge.
But here is where experience and knowing how to handle cancer cases pays off for our clients. Even just ten years ago, a defense argument like the above would have been an excellent one. The five-year survival rates for advanced stage lung cancers were dismal, probably less than 5%. A cynical defense lawyer might even have referred to a plaintiff in such a case as a “dead man walking.” (Yes, I have heard such remarks.) However, medicine and science change, often quite rapidly. I don’t pretend to understand the pharmacology involved, but there are now drugs that have the potential to extend the lives of patients with advanced lung cancers. The drugs won’t cure the patient, but there is the potential to keep the patient alive for an extended period, which is the definition of a treatment success. Such success is not certain, not even close, but a 20-25% chance of living more than five years beats a less than 5% chance by a long shot.
This case would have been a very tough one to litigate. We knew that, but I think the VA lawyers also knew that if anyone could handle such a case, it was our firm. Fortunately, we didn’t have to file suit. The VA settled the case while it was still in the administrative phase. The Department of Justice approved the settlement. The widow and the two grown children will get a decent recovery, especially as the costs and fee were low due to not having to go to court.
Most firms would have passed on this case. We took it, even though it was a risky one for us. That’s what we doand we’re good at it. I am so proud of our team and what we can do in these often very tough cases. It’s truly what sets us apart.
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