Medical Malpractice Attorneys in Maine Helping Clients After A Delayed Diagnosis of Cancer
Medical malpractice cases stemming from delayed diagnosis of cancer typically involve complex issues related to liability, medical causation, and damages. They can also involve thorny procedural issues. Below is an outline of the most important questions that guide our evaluation of a delayed diagnosis of cancer cases.
What was the negligence that resulted in a delayed diagnosis?
As with any medical malpractice claim, the first step is determining whether the delayed diagnosis was the result of negligence. In other words, the plaintiff needs to show that some medical provider was negligent in failing to diagnose the patient’s cancer sooner. The liability tends to fall into one or more of three categories:
- Ignoring concerning signs and symptoms. A patient presents with signs and symptoms that should have caused the medical provider to order testing (or refer to a specialist who would have ordered testing) to screen for cancer. Had such testing been ordered, it would have demonstrated the existence of cancer.
- Failing to interpret, report, or act upon test results. In this scenario, the provider recognizes the concerning signs and symptoms and orders the right tests but then fails to properly act on the results. The failure to act on test results can be the result of a breakdown in one or more places in the chain of responsibility. For example, imaging ordered to screen for kidney cancer demonstrating a concerning lesion may be missed by the radiologist; the radiologist may report it, but the report might never get into the hands of the responsible provider due to a systems failure, or the provider may get the report but fail to act upon the findings.
- Failure to act upon incidental findings. Many cancers are identified in patients who have testing for some other unrelated medical condition. These “incidental findings” are frequently the cause of medical negligence. For example, in one case we litigated, a patient presented a concern for an inguinal hernia, and ultrasound imaging for the hernia showed an incidental finding of testicular cancer.
Causation: Can we prove that the delay made a difference?
The most difficult issue in cancer cases is medical causation—that is, proving that the delay changed the patient’s outcome and prognosis.
What was the size and histopathology of the tumor when diagnosed?
The size and the histological features of the cancer may reveal much about how aggressive the cancer is; how long it had been present before it was diagnosed; and whether earlier treatment would have produced a better outcome. For some aggressive cancers, even a short delay of several months could have a dramatic impact on the patient’s prognosis. For other, long-growing cancers, a delay of several months, or even a year, may be immaterial.
Was the patient’s cancer deadly from the start?
Depending upon the type of cancer, the five-year survival rate may not change if the delay did not cause a change in the staging of the cancer. Or it may change, but only from bad (e.g., a 15% chance of survival) to worse (e.g., a 5% chance of survival). Generally, the plaintiff needs to prove that, more likely than not, in the absence of negligence, she would have survived cancer.
In many jurisdictions, the loss (or lessening) of a chance of survival is a cognizable injury, even if the chance of survival would not have been over fifty percent in the absence of negligence. However, as we will discuss more in another article, “loss of a chance” has not (yet) been recognized by the Maine Law Court.
What is the patient’s prognosis now?
Even if there was a delay in diagnosis, if the client had a good outcome and is in remission or has a favorable prognosis, it is not likely a viable case. An exception would be where the delay in diagnosis led to some type of invasive surgery or permanent physical or emotional harm that could have been avoided with an earlier diagnosis. For example, if a client recovered from cancer but required limb amputation to treat the cancer—an amputation would have been avoided with an earlier diagnosis—there may be a viable case despite the client’s recovery from cancer.
Defendants frequently make one of two causation arguments, depending on the facts of a particular case.
- The Absence of Evidence Causation Defense. The medical providers responsible for failing to order proper testing will rely upon the same lack of testing to refute any claims that the missed diagnosis caused harm. If there is no imaging, for example, you can expect the providers to argue that the cancer had already metastasized at an earlier time, so the delay did not cause any harm. At the very least, they will argue that, given the absence of evidence regarding the cancer’s progression, the plaintiff cannot meet her burden of proving the negligence caused an injury.
- The “Micrometastasis” Defense. Even if there is earlier imaging that shows no evidence of metastatic spread of cancer, the defense often contends that “micrometastasis” of the tumor had already occurred at the time of the negligent delay. That is, they will argue that that tiny cancer cells, too small to be detected on imaging, had already metastasized (the “horse was already out of the barn”), so that the patient would have suffered the same fate even with an earlier diagnosis.
Is the claim barred by the Statute of Limitations?
A client comes to you and tells you that she has Stage IV breast cancer, which has metastasized throughout her body, including her bones, lungs, and brain. Doctors have said the cancer is incurable. The doctor who diagnosed your client’s cancer looked back and saw that the tumor was present as an incidental finding on a CT scan performed five years earlier. Five years earlier, the tumor had not yet metastasized, and your client could have been cured with surgery. Does she have a case?
Sadly, fact patterns like this one are common. Some cancers are slow-growing, and by the time a patient discovers it, the three-year Statute of Limitations may well have expired. Unlike most states, Maine does not have a discovery rule in medical malpractice cases. Thus, in cases such as this, we need to determine whether there is any way to bring those earlier negligent acts within the statute of limitations using one of the following doctrines:
- Continuing Negligent Treatment. If the medical provider committed at least one act of actionable negligence within the three-year limitations period, the claim can be expanded to include additional acts of negligence that occurred outside of the three-year period. The key is that there must be acts of negligence before and after the three-year statute of limitations runs.
- Fraudulent Concealment. If the patient can show that her failure to pursue a claim within the three years was at least in part because the medical provider concealed the negligence, then the three-year Statute of Limitations does not apply.
Proving the Case and Overcoming Causation Defenses
To prove the case and overcome these predicable causation defenses requires clear answers to the questions above, a detailed knowledge of the available data and medical literature on the specific type of cancer involved, and highly qualified experts in oncology, pathology, and perhaps others who can opine on the cancer’s likely rate of progression and explain how the earlier diagnosis would have enabled treatment and changed the patient’s outcome and the likelihood of survival.