Medical Malpractice
Evaluating Missed Diagnosis of Cancer Cases
New Jersey Law Journal
July 29, 2008
Cancer malpractice claims pose the potential for significant reward as well as
risk for the lawyer. Damages in such cases can be substantial, with the spread
of disease causing physical and mental harm, lost wages, substantial disability
and, sadly, sometimes death. Not surprisingly many substantial verdicts have
involved delayed diagnosis claims; particular after an empathetic jury sees the
face of a now-deceased plaintiff through a videotaped deposition.
These cases can also entail significant risk. Many prospective cases do not
involve malpractice, but simply the consequences of a disease which impacts over
one and a half million people each year and is the second leading cause of death
in the United States. Doctors who might appear as prospective targets may be
able to justify various decisions, or explain why earlier intervention would not
have altered the outcome.
Patients may be upset if potential claims are rejected, particularly if this
occurs as the statute of limitations is about to end, making it difficult to
retain other counsel. Because of this combination of risks and rewards, some
knowledge of case assessment is required even in the referral of claims to other
counsel.
Statute of Limitations
While the typical personal injury limitations period is usually easy to
identify, delayed diagnosis claims can present difficult issues. The limitations
period is two years from the date the plaintiff knew or had reason to know of
the claim. What one knows or has reason to know are concepts subject to
interpretation and debate.
Patient Smith has been treated for chest discomfort for two years when a chest
X-ray discloses a probable cancerous nodule on June 2, 2006. A CT scan on June 9
reveals a 6 x 2 x 3 mass, and on June 17 surgical pathology confirms a cancerous
squamous cell tumor. When does the statute begin, from initial testing, more
reliable subsequent testing, or pathology definitively confirming disease with
the problem occasionally compounded by inaccurate dates or recollection?
The legal claim may be presented only after the tumor has metastasized and
seriously impacted quality of life. While an attorney may wish to eliminate
problems by early filing, that is not always possible. New Jersey requires a
certificate of merit for filing and the claim involves a substantial time and
monetary commitment. Thus, the attorney needs to determine the relevant time
constrains, make a preliminary claim assessment, and determine how to proceed.
Issues for the Referring Attorney
Patients may come first to a family attorney and request a referral. Referral of
other personal injury or even malpractice claims pose fewer problems: claims can
be referred well in advance of any deadline, most cases are accepted or at least
promptly evaluated, and information to assess a claim is available or
accessible. In contrast, the cancer case may involve complex facts, difficult
medical questions, approaching deadlines, and rejected claims. Let us now look
at some factors in case assessment.
Sources of Information
Medical texts like "Devita's Principles and Practice of Oncology" provide basic
survival data and a treatment overview, though some familiarity with the
particular area of medicine and the patient's condition can be required.
Sometimes a physician or medical review service is available to provide a
preliminary opinion. Some professionals can be reluctant to provide preliminary
assessments, and the attorney must decide how far to proceed, who will pay, and
how quickly the assessment can be done. Raising a client's expectations and
paying a thousand dollars for a negative evaluation makes little sense. We are
approaching a time of sub-specialties where lawyers familiar with particular
types of claim can quickly and accurately assess their merits.
Experts
Experts are usually needed to establish both causation and damages. Typically a
practitioner in the same area renders an opinion on standard of care, while an
oncologist opines on the consequences of delay or damages. New Jersey requires
an affidavit of merit with a complaint filing to confirm a breach of the
standard of care. As with other malpractice cases, the attorney will want a
knowledgeable expert who practices medicine in the specific area, testifies for
both sides, and brings with him experience, knowledge, and objectivity.
Many cases are rejected, and searching for multiple experts to support a
particular theory can be a dangerous endeavor in terms of time, cost, and raised
expectations. Unless there is a compelling reasons to search elsewhere, the
attorney should reject a claim the expert cannot support even if the prospective
damages are substantial. Taking a claim with substantial damages and
questionable liability can expose the practitioner to liability, as such claims
rarely settle particularly now that settlements for malpractice are a matter of
public record.
Time Interval
After seeing that the particular type of cancer is potentially curable, we look
to the patient's particular circumstances. How did the patient lose the
opportunity for effective treatment because of delay? First consider the amount
of time between the deviation and diagnosis. At least one empirical study
correlates the extent of delay with the plaintiff's success. See United States,
129(4) Archives of Surgery 397(1994). While gaps of two to three months did not
indicate liability, longer delays did, and a jury can quickly grasp that the
longer a tumor is untreated, the more likely it can cause harm.
Stage and Survival
In a typical case, plaintiff alleges Mary Smith was stage 1 when the tumor
should have been diagnosed but stage 4 now. Several issues must be examined.
First, survival with this particular cancer must be dependent upon stage. While
one might intuitively reason that all cancers are divided into stages with
survival stage-dependent, that is not the case. There are differing staging
systems and varying impacts of delay, with significant differences even within a
single organ. The question is not simply whether there was delay but the loss of
an effective treatment.
If we have a stage-dependent tumor, we will try to identify the likely stage at
the time of deviation. Perhaps the easiest scenario is where a diagnostic test
was misinterpreted and stage can be seen through retrospective evaluation of the
test. For example, assume a chest X-ray was misinterpreted, review of the X-ray
slides shows a 2 centimeter nodule that was missed, and the patient is diagnosed
with stage 3 non-small cell lung cancer 20 months after the X-ray. We can reason
that given its size and the absence of symptomology for a year and a half the
tumor was locally confined and stage 1 when missed.
There is almost always some degree of assumption and reasoning that can be
disputed. Defense counsel can argue that when the tumor spread to another
location is not known and that cancer can spread through lymph nodes or blood
vessels and sometimes not manifest itself for months or even years.
A good understanding of the underlying medicine and an expert who can explain
the course of the disease is helpful with the plaintiff frequently having an
advantage at trial. Most jurors will instinctively believe that a negligent lack
of treatment contributed to a poor outcome and sympathize with a seriously ill
plaintiff. Considerable skill is required for a defense counsel to argue that
even if the disease was missed and treatment delayed for a prolonged period,
that did not impact the ultimate outcome.
Even for experienced lawyers and judges, issues can be close and difficult. In
Verdiccio v. Ricca, 179 N.J.
1 (2004), four judges on our Supreme Court sustained a large verdict while the
trial judge, Appellate Division and two on the Court saw the proofs as
insufficient to even present them to the jury. (2).
Claims of Those Already Seriously Ill
Family members may initially target an uncaring specialist who missed what they
see as a critical issue and attribute the patient's demise to that failure. Not
infrequently, the specialist saw the patient in the hospital where his cancer
was already advanced. If the patient's condition was untreatable, damages should
be limited. If he was hospitalized and his cancer terminal with ongoing
monitoring in a hospital setting, attempting to blame one specialist involved
with this treatment can be unproductive.
There are no medals for trying, and the attorney who spends hundreds of hours
and corresponding amounts of money on a misplaced case will just find an unhappy
client at the end of the road. The assessment of damages must be based upon
existing treatments and FDA-approved drugs, not new and promising treatments or
anecdotal reports of cure. As such, the target of claims in these cases is
rarely the oncologist or other specialist treating the terminally ill patient.
Instead it may be the general practitioner who missed the tumor when it was
treatable. Considerations of pleasantness and concern should play little part in
the lawyer's assessment; one cannot sue an unpleasant practitioner or exculpate
a congenial one. The patient may elect not to sue a particular doctor but beyond
that cannot select the defendant based upon nonlegal considerations.
Standard of Care
Negligence cannot be presumed from a poor outcome. Cancer medicine is in an area
of extensive research with clinical trials, genetic findings and drug testing
holding out the promise of cure or remission. With liability as with damages,
investigational drugs or new research has no place in the analysis. Until a
treatment becomes standard, the physician is not required to use it and one must
be careful not to use developing medicine to establish liability or causation.
Damages
Damages are an obvious consideration involving many of the same elements as
other personal injury claims. Present and future lost wages, pain and suffering,
loss of companionship and consortium are assessed to determine the value of the
claim. The claim of a 75-year-old retired man with multiple health problems may
be limited. Contrariwise, a loss involving a 50-year- old man or woman may
entail substantial lost wages. An attorney will typically estimate the amount of
damages, the probability of success, and the amount of time required to reach an
assessment.
Lost wages entail an assessment of age and employment but also consideration of
the patient's overall health. Other health problems will reduce a claim's value
and estimate of lost wages.
Some may see the value of a life with continued health problems as limited.
However, where a tumor spreads, one can establish substantial pain and suffering
through medical records and family testimony. Claims involving the elderly may
involve differing opinion by experienced counsel.
Conclusion
At the onset, counsel should determine applicable limitation periods and assess
the case in sufficient time to enable the prospective client to obtain other
counsel. Given the prevalence, difficulty in diagnosis, and incurability of many
tumors, claims cannot be assumed simply because of an unfortunate result. Case
evaluation involves review of the curability of the cancer, the extent of delay,
the nature of the deviation, and the amount of damages.
Howard
Gutman is the author of "Lung Cancer and Mesothelioma," a 450-page book
examining the legal and medical issues involved with lung cancer. He has a
general practice in Mount Olive which includes delayed diagnosis of cancer
claims.
MEDICAL MALPRACTICE
LINKS
Failure to diagnose cancer, doctor's defenses
Malpractice and standard of care
Failure to Detect Lung
Cancer claims
Evaluating missed diagnosis of cancer cases article
What is cancer (chapter one from our upcoming book, A Complete Guide to Lung Cancer)
medical malpractice and standard of
care
(a journal discussing medical malpractice standards of care
including failure to diagnose cancer)
New York medical malpractice
claims
medical
malpractice lung cancer claims
cancer malpractice statute of limitations
New York Cancer Malpractice claims medical
malpractice and clinical practice guidelines
New Jersey cancer malpractice claims
medical malpractice liability
Medical malpractice jury instruction
New
York Medical malpractice law
medical malpractice pre-existing cause
workers' compensation doctor liability for malpractice
malpractice and informed consent
lung cancer
malpractice claim elements
Delayed
diagnosis of cancer Kern article Cancer pathology claims
Delayed diagnosis of cancer Sign
article Errors in
Cancer Diagnosis
delay in
diagnosis effect on stage
missed and
overlooked diagnosis Butnor article.