The Doctor Missed My Cancer: Do I Have A Case?
By David A. Kulwicki
Medical advances in recent years have reduced national death rates for virtually all cancers. The American Cancer Society and various medical subspecialty boards have developed screening protocols in an effort to catch some of the most common cancers as early as possible. Early diagnosis saves lives! The ACS's current screening guidelines can be viewed at www.cancer.org. But screening alone is not enough. Doctors are trained to be alert to the common signs and symptoms of cancer and to order testing that is necessary to establish the diagnosis as early as possible. Early treatment saves lives! Unfortunately, all too often, doctors cut corners or make assumptions without doing the proper testing that can delay the diagnosis and treatment of cancer for years.
So what happens when your doctor misses early signs of cancer? Does that mean that you have a meritorious claim for medical negligence against your doctor? The answer is not always a simple one. Following is a primer on medical negligence cases arising out of a doctor's failure to timely diagnose cancer.
The Elements of a Failure to Diagnose Cancer Case
First, things first: What are the elements of a claim for medical negligence? State law provides that the patient has the burden of proving three elements to establish a claim for medical negligence against their doctor: (1) negligence; (2) causation; and (3) damages. If any of these elements are missing, then the case fails.
Medical Negligence
Medical Negligence simply means that a doctor did something or didn't do something that a reasonably careful doctor should do under the circumstances. In cancer cases, the negligence can take many forms. Some common examples of negligence are failure to undertake screening, failure to order testing in the face of signs or symptoms of cancer, or misreading test results such as a biopsy or x-ray.
People often believe that a doctor is not negligent unless he intended to cause harm. We often hear people say "the doctor didn't mean to do it" or "the doctor just made an honest mistake." That may be so, but it is also irrelevant. The doctor is responsible if he was negligent, whether he meant to be or not.
Negligence is established by proof that the doctor did something or didn't do something that he or she should or shouldn't have. These things that doctors should or should not do are called standards of care. Sometimes standards of care are set forth in writing, like the American Cancer Society screening guidelines discussed above. But this is rarely the case. Often times, doctor's groups do not publish written standards of care because they want to avoid taking an official position that could later be used against them in the courtroom. Even if physician's groups were willing to publish standards, it would be impossible to write down standards of care that apply to all patients in all circumstances. If medicine was "one size fits all," many doctors would have already been replaced by computers. The fact is that every patient is different - different ages, different risk factors, and different symptoms - so the standard of care depends on what is reasonably safe under the particular patient's circumstances.
To establish what is safe under the circumstances, medical negligence lawyers speak with experts within the doctor's field of medicine. These experts will advise the lawyer whether the doctor's actions were reasonable under the circumstances. In order to do that, the experts must review all relevant medical records and determine what standard of care was required under the circumstances. Since the standard of care is usually not set in stone, the doctor can always find experts of his/her own to testify that his/her actions were reasonable under the circumstances, no matter how unreasonable and unsafe the doctor's actions really were. Often the doctor's experts are highly respected professors of medicine from major universities, so jurors can be easily duped into siding with the doctor.
Lawyers experienced in handling medical negligence actions must work hard to show that the doctor's experts are simply covering up for the doctor's mistakes. This can be accomplished through exhaustive searches of available medical literature and hospital policies and procedures.
Experienced lawyers are also able to recognize common mistakes that doctors make. For instance, doctors often make the mistake of assuming that a patient's symptoms are due to some benign medical condition other than cancer. This is no excuse! Doctors are trained in a process to determine whether a patient's symptoms are serious or not. This is called the differential diagnosis. Doctors are trained to make a list of all medical conditions, from the common to the rare that might cause the patient's symptoms. This is called the differential. They are trained then to review risk factors, perform an examination and do those tests necessary to reach the correct diagnosis. Doctors are negligent when they skip steps or jump to conclusions without ruling out all dangerous conditions in the differential.
Causation
The element of causation is often the most difficult to prove. Causation is established by showing that had the doctor done what he/she was required to do by the standard of care, then the patient's outcome would probably have been better. In cancer this invariably requires proof that the doctor's negligence allowed cancer to advance from an early, treatable stage to an advanced stage with a poor prognosis.
In order to decide whether the causation element can be proven in a cancer case, you must first understand how early diagnosis and treatment of cancer can change the outcome. There are many different types of cancer, but in general cancer starts in one organ and then spreads when left untreated. Metastasis is the term used to describe cancer spreading throughout the body. Cancer typically spreads in three different ways. First, it can spread through the lymphatic system. This is commonly seen when cancer spreads into lymph nodes. Second, cancer can spread through the blood supply. This is seen when cancer spreads into the lungs, liver, bones or brain. Finally, cancer can spread regionally from one organ to the surrounding organs.
The type of cancer is established by where it started. If the cancer starts in the breast, it is called breast cancer. If it starts in the liver, it is called liver cancer. When breast cancer spreads to another organ like the lungs, it does not become lung cancer. It is called metastatic breast cancer.
Once a diagnosis of cancer is made, doctors will usually stage the cancer based on how far the cancer has spread. Staging is done by examining lymph nodes and other organs. There are a number of staging systems but the most widely used by far is the TNM staging system promoted by the American Cancer Society and American College of Surgeons. In the TNM staging system, T stands for tumor, N stands for nodes and M stands for metastasis. Doctors will test a patient who has been diagnosed with cancer to see how large the original tumor is, whether lymph nodes are involved and whether the cancer has spread (metastasized) to other organs. This testing may involve biopsy of lymph nodes and/or imaging of other organs to look for signs of cancer. These findings will establish the patient's stage. When the tumor is small and no lymph nodes or other organs are involved, the stage is 1. With advancement of the cancer, the stage increases. Stage 4 is the worst stage.
In general, the earlier the stage, the greater the chance that the cancer can be cured. Doctors assign survival rates to the stages of cancer. These survival rates vary by the type of cancer. By way of example, the survival rate for Stage 1 breast cancer is 85-95%. When there is a delay in diagnosis and the cancer advances to stage 4, the survival rate falls to 5%. For most cancers, survival beyond 5 years without a recurrence of cancer means that the patient is cancer-free, i.e., cured.
Once cancer is diagnosed it can be treated in various ways, depending upon the type of cancer and the extent of the disease. Surgical excision is simply removing the cancer through surgery. Chemotherapy is the use of toxic chemicals to kill cancer cells. Immunotherapy is treatment to boost the body's immune system as it fights cancer. Radiation therapy is the use of concentrated dose of radiation to burn away cancerous growths. Cancer treatment has improved dramatically in recent years thereby improving survival rates. The fact that more cancer cases are curable than ever before makes it even more catastrophic when doctor mistakes allow cancer to progress to an incurable stage.
Causation is established in medical negligence cases by showing three things: (1) that if the doctor was not negligent, the cancer likely would have been diagnosed earlier; (2) if the cancer was diagnosed when it should have been, the patient would likely have been in an early, curable stage; and (3) at the time of actual diagnosis, the cancer was in a later, advanced stage.
One challenge in proving causation in a medical negligence case is establishing what the stage would likely have been at the time of misdiagnosis. In other words, if the doctor had not been negligent, and the diagnosis made, would the cancer be at an earlier stage with a better prognosis? This is challenging because, unlike at the time of diagnosis, no testing is done (since the cancer was missed) to establish the stage. Experienced lawyers will scour medical records for proof that the cancer had not spread at the time of the misdiagnosis. One way to do this is to document the onset of signs or symptoms that are associated with advanced disease. These vary from cancer to cancer and may depend on the type of metastatic spread that occurs. For example, symptoms from lung metastasis (e.g., cough, shortness of breath, wheezing, chest pain, or coughing up blood) are different from symptoms of bone metastasis (e.g. bone pain or fracture). Often the signs of advanced disease manifest as constitutional symptoms, such as weight loss, fatigue and night sweats.
Another way to prove the stage at the time of the misdiagnosis is through medical literature. Doctors periodically publish reports on prognostic factors that assist them in determining the patient's chance of survival at a particular stage of cancer growth. For example, one large study showed that breast cancer patients who have a tumor that is less than 2 centimeters in diameter (about 1 inch) are more likely than not to be in Stage 1. Thus, if a radiologist misses a small tumor on a mammogram that should have been discovered and reported, the patient can prove that they were at an early stage at the time of misdiagnosis.
Another way to prove stage at the time of misdiagnosis is to base an estimate on the natural history of the tumor. Some cancers tend to grow either very fast or very slow which can help an expert determine whether earlier discovery would have improved the patient's odds of survival. Such estimates can be, and often are, abused by experts working for doctors. These experts use what is called the doubling time theory to estimate stage. The theory is that tumors double in size at set intervals. These experts then extrapolate backwards to estimate when the cancer first started and when it began to spread. The doubling time theory is junk science, plain and simple. Nonetheless, courts throughout the country routinely allow these experts to testify.
Careful review of the patient's past medical records can disclose proof that the cancer was in an early stage at the time of the misdiagnosis. This can be shown through imaging studies that are taken serendipitously during the period in question (this takes some luck!).
Finally, some States permit a party to prove causation even when essential facts needed to establish the patient's stage at the time of misdiagnosis are not available. The theory is that the doctor should not benefit from his/her own negligence since it was his/her negligence that kept the patient from learning his/her stage at the time of the misdiagnosis. Thus, when the patient's expert cannot say that it is more likely than not that the patient's cancer advanced from an early curable stage to a terminal stage due to the delay in diagnosis, the patient may still be able to recover if the expert can state that the delay increased the risk of harm to the patient. This so-called loss of chance theory varies from State to State.
These are general principles that vary from cancer to cancer. For instance, some cancers have poor outcomes no matter when they are diagnosed. Remember, when it comes to proving causation, you must always ask the question whether earlier diagnosis would have made a difference. If not, then the old sports adage, "no harm, no foul," applies.
Damages
Typically, the damages element of a medical negligence claim is the easiest element to prove. Catastrophic injuries, together with the injustice of a doctor who didn't do enough to give the patient the best chance to beat his/her cancer, bring the patient to a lawyer in the first place. There are, however, situations where the damages in a cancer case are insufficient to warrant the time, expense, emotional toll and risk associated with medical negligence litigation. If a patient has multiple other medical problems that limit life expectancy, or if the difference between prognosis at the time of the misdiagnosis is similar to the prognosis at the time that a correct diagnosis is made, damages may be inadequate to proceed. Also, most States have enacted unnecessary "tort reform" legislation that protects doctors' insurers from paying the full cost of medical mistakes. These are designed to make it economically impossible for lawyers to handle justified medical negligence claims on behalf of injured women, children, minorities and the elderly.
Defenses
In addition to the above considerations, there are defenses that doctor's lawyers have available to them to defend against medical negligence claims. One important defense is the statute of limitations defense. States impose deadlines by which a lawsuit must by filed, the so-called statute of limitations. This period varies from State to State. If a patient files a lawsuit after the statute of limitations has expired, their claim is barred and subject to dismissal with prejudice.
Another common defense is the contributory negligence defense. This defense applies when the patient is negligent too, and their negligence combines with the doctor's negligence to cause a delay in diagnosis. An example of this would be where the patient notices blood in their urine but doesn't consult a doctor for a year. After they consult the doctor, the doctor negligently assumes that the bleeding is related to an infection and fails to do testing that would have revealed bladder cancer. The defense can assert the plaintiff's negligence as a defense. Depending on State law, proof of the plaintiff's negligence can negate the claim against the doctor altogether or lead to a reduction in an award made against the doctor.
Why Doctors Are So Important
The discussion above shows why doctors are so valuable to their patients. A well-trained, concerned physician can use their specialized knowledge to evaluate a patient's symptoms to rule cancer in or out. Lazy, distracted, busy or corner cutting doctors can miss a diagnosis that is right under their nose. This can have disastrous consequences for the patient. Patients trust their doctors to take proper steps to make a correct diagnosis, which doesn't always mean a quick diagnosis or an apparent diagnosis. Lawyers handling medical negligence cases can uncover the evidence necessary to show whether the doctor failed to do what he/she was supposed to in order to protect that patient.
