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At what point does failure to diagnose a disease like cancer cross the line into medical malpractice?
Kathy McArthur explains how failure to diagnose cancer can be considered negligence in certain cases.
Today's topic is what is the meaning of a delay in diagnosis in breast cancer situations, and when is it legally actionable? In cases in general, you almost always have to have at least a six month delay in diagnosis of the cancer in order for us to be able to prove that the delay in diagnosis has altered either the treatment that's going to be needed or the prognosis, meaning whether or not the cancer is going to kill the patient ultimately.
Delay in diagnosis cases have two parts.
First is whether or not the conduct of the doctor in failing to diagnose it was beneath the standard of care such as in a breast cancer case. If there is a breast lump and the doctor fails to send the patient or a biopsy of the lung within a period of three or four months they're allowed to watch a long or a few months and especially in a younger woman they're allowed to watch it for several several cycles of their menstrual period to see if that's something that is hormonally driven. So it's something where a doctor is allowed a few months but then if it's still there then he needs to document the size and the shape and what it feels like and he needs to send that patient for a biopsy. If he doesn't do it more likely than not it's going to be that the if it is cancer, that he's going to be accused of having violated the standard of care for physicians, meaning that he did not practice within the minimum standard of what patients should expect what a reasonable physician would do in the same or similar circumstances.
So if it's something that goes on or if he doesn't send the patient for a biopsy and just says, "You're young it's very unlikely to be cancer, let's just not worry about that. I'm sure it's related to hormones." Then a year goes by and it's still there and the patient comes in and it gets diagnosed at that point and it is cancer. Then it becomes a question of what type of cancer is it. How aggressive is the cancer? And you have a long enough delay for it to be meaningful but then we need expert testimony about how has this changed the patient's treatment and how has this changed the patient's ultimate outcome, meaning: what are their chances of surviving it? So it's a very it's a very involved type of case and complex and it takes expertise in the field.
This is one of the reasons why most lawyers don't do medical malpractice. You need someone who does medical malpractice cases on a regular basis to review and give it an opinion that means something to a client about what does a breast cancer diagnosis mean and whether it is legally actionable.
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