In other sections of this web site we discuss large cases and medical malpractice cases in Litigating Complex Negligence Cases & Medical Malpractice Basics. Those articles discuss the use of experts in proving:
- The defendant breached the standard of care
- Damages you sustained
- Causation of the damages to the malpractice
In cases involving the misdiagnosis or failure to timely diagnose cancer, these factors apply as well but there are also additional issues, which must be addressed, are specific to failure to diagnose cancer cases.
The biggest issue in cancer cases is frequently causation. The question usually is: if the cancer had been diagnosed earlier or in a timely fashion, how would the outcome be different than it is today? One must remember that in these kinds of cases, the injured party had cancer prior to the negligent action of the defendant Doctor. It will be the job of your attorney to prove that had the cancer been diagnosed earlier treatment would have been rendered which would make the prognosis/outcome much better than it is.
A typical example is in the case of breast cancer. We have had cases where the defendant Doctor failed to act promptly when faced with a breast lump in one of their patients. As a result of a delay in treating the cancer the patient has either died of the cancer or her life expectancy has been significantly reduced. In such a circumstance the attorney representing the injured woman will need to show that had the lump been diagnosed and treated promptly, then that treatment would have resulted in a normal or near normal life expectancy. Your attorney must also be prepared to face the inevitable defense to this case, which is, that the delay in diagnosis was too short to make any difference and that even if the tumor had been timely diagnosed and treated, the outcome would have been the same.
Peculiar to cancer malpractice cases are experts that deal specifically with cancer and tumors. Most commonly, oncologists (cancer specialists) are utilized. Additionally, physicians with a special expertise in tumor biology are useful. These experts look at the chemical and genetic makeup of the cancer taken from pathology samples, after the tumor is removed, and offer opinions as to the likely makeup of the tumor at the time that it should have been diagnosed. Typically, the plaintiff’s expert will opine that if the tumor had been diagnosed when it should have been, then the harm to the victim would have been minimal. At the same time it is also typical for the doctor or hospital to have an expert who will come to the opposite conclusion.
- In order to prevail on such claims:
- It is important to have very credible experts
- It is essential that your attorney know how to find such experts; and
- Your attorney must have a good working knowledge of the applicable medicine so that he/she has he knowledge and experience to know how to highlight the weaknesses in the defendant’s experts’ opinions.
Here at Berman, Sobin, Gross, Feldman & Darby LLP, we have attorneys with such experience and knowledge as well as the resources to successfully prosecute these difficult, complex and important cases.