There are many ways to accidentally harm someone. Most of us would have more sympathy for a doctor who negligently fails to diagnose cancer than for a motorist who negligently runs a red light and causes an accident. From a legal point of view, however, both of these parties are equally responsible for the harm they caused, and both are liable to pay full compensation.
Not all adverse medical outcomes amount to medical malpractice, of course. New York guards against the possibility of meritless lawsuits by requiring your attorney to file a Certificate of Merit to maintain the lawsuit. This means that your attorney must consult with a licensed physician and decide that a “reasonable basis” exists for the lawsuit.
Common Reasons for Failure to Diagnose
“Failure to diagnose” cancer refers to two distinct scenarios:
- The doctor made no diagnosis of your condition whatsoever
- The doctor diagnosed your condition as something other than cancer.
Either way, the doctor failed to diagnose your cancer. Since at least one expert has concluded that medical diagnoses are wrong about 15 to 20 percent of the time, your chances of falling victim to a negligent failure to diagnose cancer are far from remote. Following are some of the most common reasons why health care providers fail to diagnose cancer:
- Failure to take an adequate medical history of you and your family;
- Failure to order appropriate diagnostic tests;
- Misinterpretation of test results;
- Failure to communicate (failure to transfer test results to the appropriate person, for example)
The Differential Diagnosis List
When a doctor examines your condition, he will create a “differential diagnosis list” in which he lists possible conditions that could be responsible for your symptoms, in descending order of their likelihood. For example:
- Crohn’s disease
- Colon cancer
The doctor will then attempt to rule out various possible conditions using means such as biopsies, etc. Malpractice may occur, for example, if your actual condition is not on the differential diagnosis list at all, or if it was on the list but the doctor failed to take steps rule out your actual condition. The ultimate standard is what a “reasonably prudent doctor” would have done under the same circumstances.
What is a “Reasonably Prudent” Doctor?
The “reasonably prudent doctor” is a fictional character. The reasonably prudent doctor is not the best doctor, and he is not even the average doctor (otherwise about half of all doctors would commit malpractice on a daily basis). Instead, the “reasonably prudent doctor” is a doctor who meets the minimum standard necessary to avoid committing malpractice.
This standard, although “minimum”, is a high standard. By a process of elimination, there has to be a “worst doctor” out there somewhere — it is a mathematical inevitability, Nevertheless, even the worst doctor should still be competent enough to inspire confidence. Whether a “reasonably prudent doctor” would have diagnosed your cancer is typically determined by expert testimony.
Proving Your Case in Court (or at the Settlement Table)
Although most personal injury claims are resolved at the settlement table rather than in court, a particularly high percentage of medical malpractice claims end up in court, because health care providers fight hard to protect their reputations. This reality means that even if you end up winning a settlement, you may still have to collect enough evidence to prove your claim in court.
The four elements that you must prove to win a medical malpractice claim are:
- Duty. You must prove that a doctor/patient relationship existed. This is normally easy to prove.
- Breach. Expert testimony must establish the standard of care (the “reasonably prudent doctor” standard), and you must prove that the doctor failed to meet this standard.
- Causation: You must prove that the doctor’s failure to diagnose your cancer caused you actual harm.
- Damages: You must prove exactly how much harm you suffered, including both economic and non-economic losses (pain and suffering, for example).
Wrongful Death Claims
Compared to other forms of medical malpractice, failure to diagnose cancer is particularly likely to result in the death of the patient. When this happens, the patient’s claim does not die with him — it is simply transformed into a wrongful death claim.
The personal representative of the deceased victim’s probate estate is the party who files a wrongful death lawsuit. This person is usually named in the victim’s will and is typically a close relative (often the victim’s spouse). If the victim left no will (a child, for example), a probate court will appoint the personal representative, and it will usually appoint a close relative.
The Statute of Limitations
The statute of limitations sets the deadline by which you must file a medical malpractice claim. If you miss it your claim will die, even at the settlement table. The New York medical malpractice statute of limitations was modified by “Lavern’s law” when it applies to failure to diagnose cancer. It is rather complex, and you should consult with a lawyer to determine the exact date:
- You generally have two and a half years from either (i) the date that you discovered or should have discovered the malpractice or (ii) the last day of continuous treatment, whichever is later, to file the lawsuit.
- In no case will you be able to file a lawsuit any later than seven years after the malpractice actually occurred
- Special rules apply to claims that arose before the law was passed (January 31, 2018)
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E. Stewart Jones Hacker Murphy has been around for more than a hundred years and has been named a first-tier Albany law firm by U.S. News every year since 2011.
We serve clients from all over Albany including Downtown Albany, Arbor Hill, Pine Hills and elsewhere. We also serve clients in the Capital Region, upstate New York and beyond.
If you suspect that you are a victim of a negligent failure to diagnose, contact us today to schedule a free case consultation, where we can answer your questions and discuss your options.