MEDICAL MALPRACTICE FAILURE TO DIAGNOSE CANCER-
TYPICAL DEFENSES
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medical malpractice, failure to diagnose cancer, defenses, New Jersey medical malpractice lawyer, malpractice defenses,
1. Proximate Cause The delay in diagnosis did not substantially affect the patient's condition. The plaintiff in a medical malpractice case must demonstrate proximate cause, that is, the doctor's error significantly altered the patient's condition or chance for survival. If Dr. Smith missed a cancer diagnosis in July but the disease is diagnosed in September, the delay probably did not affect the patient's prognosis.
2. Statute of Limitations Most states have a two year statute of limitations. Some have adopted the discovery rule; that is, the statute runs not from the date of the error, but from when the patient knew or had reason to know of the error. Frequently the patient will decide to bring a claim after the statute of limitations appears to have ran. Note in those sad cases where death is alleged to occur from a medical malpractice delayed diagnosis, a new time period may begin from the date of death.
3. Standard of Care without Retrospection Many times we
can look at the patient's condition and see that he or she had cancer.
However, that is not the test. If the presentation was atypical or the
tests suggested were not part of standard or customary care, there may be no
claim. For example, while a good physician may take a chest x-ray of a
smoker, there is no requirement that he do that. A failure to
properly diagnose lung cancer claim would have to show that the patient's
symptomology together with his smoking history indicated the need for a chest
x-ray or other tests. We look at what the physician did prospectively
based upon the information he had as indicated by the medical records or stated
by the patient.
Profile
Howard Gutman is a New Jersey attorney based in Parsippany, New Jersey who has handled numerous legal claims involving pulmonary tumors. A member of the board of directors of a leading cancer support group and a caregiver, he is the author of the new book Lung Cancer and Mesothelioma. In his legal capacity, he has appeared on Good Day New York, spoken at the National Press Club and been interviewed by NBC Nightly News.
DISCLAIMER This page is not intended to provide medical advice or treatment. Some of the information on this site may not be relevant to your condition, and all advice should be obtained from a physician. The materials herein are intended to provide general information.
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