Cancer Misdiagnosis - San Antonio Attorney South Texas Medical Malpractice Lawyers medical negligence

“We all want to believe that when people get cancer, they will receive medical care of the highest quality. Even as new scientific breakthroughs are announced, though, many cancer patients may be getting the wrong care, too little care, or too much care, in the form of unnecessary procedures.”

Ensuring Quality Cancer Care, Maria Hewitt and Joseph V. Simone, Editors; National Cancer Policy Board, Institute of Medicine and National Research Council, 1999

Cancer Misdiagnosis

The majority of cancer medical negligence cases involve the failure by a healthcare provider to identify or properly diagnose malignant cancer or treatment has been delayed. Four main issues need to be evaluated in every case wherein a health care provider fails to diagnose or properly treat a case of malignant cancer.

The first issue is whether the Statute of Limitations prevents the injured party from pursuing a cause of action against the health care provider. Generally, a claim must be filed within two years from the date of the mistake or the date of the misdiagnosis for a patient over 12 years of age. In most cases the patient doesn’t find out about the misdiagnosis or mistreatment for many months or possibly even more than a year. Therefore, many injured patients are prevented from pursuing a cause of action because more than two years have elapsed from the date of the “mistake” or “error” even though the injured person did not know of the negligence for a year or more. In very limited circumstances it may be possible to pursue a cause of action if two years or more have elapsed from the date of the mistreatment. Minors under the age of 12 get until their 14th birthday to bring a cause of action. It is very important to consult with an attorney as soon as you are made aware that a mistake was made in your treatment or diagnosis to avoid having your claim barred because of the statute of limitations.

The second issue is whether a proper diagnosis or proper treatment would have changed the outcome or course of treatment. In many cases the outcome, to the patient, would have been the same. The patient would have had to go through exhausting treatments or the patient would have succumbed to the cancer even if there were no malpractice. This is difficult for many people to accept. In many cases the misdiagnosis or mistreatment lessened or decreased the patient’s chance for survival. However, the Texas Supreme Court, has ruled that there is no cause of action for “lost chance of survival”; therefore, it is necessary to prove that the patient would have survived if the mistreatment or misdiagnoses had not occurred. Another way to look at this second issue is whether some act of the treatment provider caused an injury because of a delay in treatment. Usually, this is determined by the concept of: the length of delay. Did the length of the delay in treatment cause an injury? In some cases the delay did not alter the outcome; however, the delay may have significantly altered the type of treatment. Then the issue is not that the ultimate outcome would have been different, but that the delay or misdiagnosis necessitated the use of surgery, chemotherapy, and/or radiation that was more invasive or radical than had the delay not occurred.

The third issue is determining whether the patient suffered a compensable injury. In order to establish that the patient has a claim against the health-care provider it needs to be established that: the health-care provider owed a duty to the patient, the health care provider breached that duty, the patient suffered an injury, and the health-care provider’s breach was the proximate cause of the patient’s injury. The injury has to be significant enough to justify spending the time and money required pursuing a cause of action against a health care provider.

The fourth issue is whether the medical professional(s) erred, or failed to act in such a manner that the conduct failed to meet the appropriate standard of care under the circumstances. Furthermore, the health-care provider’s breach must have caused the injuries. Top medical professionals specializing in pertinent fields are hired to make this determination. In cases that involve cancer treatment we may retain the services of: oncologists; radiologists; forensic pathologists; or any other specialists needed to evaluate the patient’s treatment.

Frequent types of oncology malpractice cases by anatomical site: breast, cervical and ovarian, colon/rectal, hemopoietic (primarily lymphomas), lung and thoracic, melanoma/skin cancer, and prostate.