1. Screening & Diagnosis
There is abundance of information about proactive care for various cancers, but no substitute for thorough screening and assessment from a health care provider. Physicians are on the front line evaluating patients who present with undiagnosed conditions, and should take complete evaluations of patients, order appropriate tests when necessary, and follow up with patients to rule out cancer.
Errors in the earliest phases of the doctor-patient relationship can have lasting consequences when a cancer diagnosis is overlooked. Examples of how this may occur:
- Patient history: Many cancers, including breast cancer, are strongly correlated to a patient’s family history, genetics, and risk factors. PCPs, gynecologists, and other providers should obtain complete family medical histories of patients, relative to cancer histories. Those with more than one relative diagnosed with breast cancer, for example, should be carefully counseled and have their blood tested for BRCA-1 or BRCA-2 genetic mutations. Generally, doctors with “high risk” patients should recommend appropriate cancer screening.
- Dismissing symptoms / patient complaints: Doctors who see patients with symptoms or concerns which may indicate cancer could breach their duty of care if they fail to take reasonable steps in making observations about a patient’s condition, understanding the significance of their complaints, and evaluating an underlying origin. If patients describe symptoms indicative of cancer, or worthy of further screening, doctors have a duty to adequately work through a “differential diagnosis” for conditions with similar signs, including cancer. Dismissing symptoms without adequate investigation may constitute malpractice.
- Failing to order necessary tests: Diagnostic testing provides doctors with insight that cannot be obtained through physical examination and / or patient questioning alone. Physicians who fail to order necessary tests, including blood tests, biopsies, pelvic exams, mammograms, colonoscopies, CT scans, and other appropriate exams may fail to meet the applicable standard of care. Failures to follow-up on testing, or refer patients to relevant experts / specialists for testing or further interpretation of test results may constitute substandard care, depending on the circumstances.
- Misreading diagnostic tests: Ordering and obtaining needed tests is only part of a complete and adequate assessment process; doctors should properly read tests results, consult relevant specialists or experts, and confer with colleagues when necessary to correctly interpret results in arriving at a diagnosis. Misinterpreting tests can result in an improper diagnosis for a condition the patient does not have, and cause delays in making a diagnosis allowing the disease to spread.
Because these are general examples of how malpractice may occur in the context of a missed or improper cancer diagnosis, all patients and families should understand that cancer medical errors can look different depending on the circumstances involved. That may include:
- Breast cancer: Incorrectly diagnosing a patient with a non-cancerous cyst or breast tissue inflammation (mastitis), failing to adequately screen patients, failure to order a mammogram, or misreading a mammogram.
- Lung cancer: Failing to order tests, making an improper diagnosis of pneumonia, bronchitis, or another respiratory condition, or misreading imaging.
- Colon cancer: Misdiagnosing colorectal cancer as IBS, Crohn’s Disease, or ulcerative colitis, as well as failures to conduct routine screenings, perform timely digital rectal exams and PSA blood tests, remove polyps identified in a colonoscopy, or properly interpret test results / react promptly to abnormal results.
- Leukemia: Failing to diagnose leukemia in a patient who displays flu-like symptoms or signs of an autoimmune disorder such as autoimmune lymphoproliferative syndrome (ALPS).
- Skin cancer: Mistakenly diagnosing skin cancer as a benign growth, skin tag, or liver spot, failing to identify skin abnormalities, failure to refer to a dermatologist or specialist, and failing to order / misreading a biopsy.
- Thyroid cancer: Diagnosing Lyme disease, goiter, or Graves disease in a patient with thyroid cancer.
- Cervical cancer: Failing to order tests (pap smear, biopsy, colposcopy) when patients present with abnormal symptoms such as abnormal bleeding, pelvic pain, missed period, pain or bleeding during sex, and blood in vaginal discharge; misinterpretation of pap smears.
Because there are cancers which have grim prognoses even when detected at their earliest stages, proving a medical provider failed to avoid advanced cancer can be challenging. Proving negligence and causation (that is, the provider’s substandard care was the cause of a patient’s damages) is critical – claimants will need to show that a timely diagnosis would have led to a significantly better outcome.
2. Cancer Treatment Errors
In addition to a lack of needed treatment, diagnostic errors can lead to increased risks of adverse outcomes. This may include:
- Unnecessary forms of treatment for a condition the patient does not have.
- Medication errors and prescribing unnecessary medications.
- Delayed radiation or chemotherapy resulting in metastatic cancer.
- Failures to recognize complications, contraindicated medications, and other issues.
- Failures to diagnose a related disease for which chosen treatment poses risks of patient harm / worsening of condition.
- Unnecessary surgery / surgical errors – including removal of organs, body parts, or tissue which may cause disability or disfigurement (i.e. unnecessary mastectomy, unnecessary removal of prostate).
Our firm has handled cases involving medical providers and hospitals across Cuyahoga County and Ohio – including The Cleveland Clinic, University Hospitals, The MetroHealth System, and Kaiser Foundation Hospital.
3. Administrative / Coordinated Care Errors
Rarely do patients entrust a single doctor to diagnose and treat all of their symptoms. Instead, they rely on a multi-disciplinary approach and the collaboration of various providers. Family physicians / primary care doctors (PCPs) may work with or refer patients to oncologists, radiologists, gynecologists, internists (internal medicine), pharmacists, surgeons, and other relevant specialists who assist with patient screening, imaging and blood tests, and various interventions / treatment.
While coordinated care allows patients to be treated by practitioners who specialize in a particular field of medicine, it can pose risks for medical mistakes. Though there are many ways these errors may manifest to the detriment of a cancer patient, some examples include:
- Failures of administrative personnel to order and / or follow up with appropriate tests.
- Mistakes in patient history obtained by a provider.
- Hospital malpractice, including administrative mistakes and miscommunication.
- Errors in paperwork delivered during patient hand off / transfer.
- Failures to share findings / consult with other providers about a diagnosis or treatment plan.
- Lab errors, including lost tissue samples, documenting incorrect results, false positives / false negatives, and switching a patient’s biopsy with another’s.
- Defects in testing or treatment equipment / failures to adequately maintain and calibrate medical equipment.
Failure to Timely Diagnose Breast Cancer
Breast cancer survival rates depend upon early detection and treatment. A delay in the diagnosis of breast cancer could mean the difference between Stage 1 and Stage 4 breast cancer — a difference that can decrease the chance of survival by over 80%. However, when doctors fail to follow accepted protocols, breast cancer can go undiagnosed, costing a patient critical time in fighting the disease, which may allow it to progress to an advanced stage.
As one of the most commonly missed forms of cancer, breast cancer errors often involve misread test results (i.e. mammogram results), as well as failures to follow up or address warning signs / risk factors.
Errors which often contribute to delayed diagnosis and treatment of breast cancer include:
- Failure to perform a mammogram, ultrasound, or biopsy;
- Misread mammograms / misreading or not reviewing test results;
- Failure to consider patient / family history and risk factors;
- Failure to properly perform biopsies;
- Failure to respond appropriate to warning signs or test results;
- Failure to follow up with patients;
- Failure to refer to breast surgeons or other specialists.
Standardized care and protocol compliance have helped many women and survive breast cancer. However, these and other errors can cause critical delays, or false positives that result an unnecessary mastectomy, harmful medications, and other unneeded treatment. That’s particularly true for misread mammograms, which can be caused by:
- A radiologist’s failure to properly interpret a mammogram.
- Communication failures between radiologist and doctor / hospital.
- A doctor’s failure to follow up on warning signs present in the mammogram.
Failure to identify signs of cancer, misinterpreting mammograms, and administrative mistakes involving a patient’s coordinated care may rise to the level of malpractice, but a personalized evaluation of medical records and test results is necessary. This includes consideration of the qualifications of radiologists and other professionals. One study from the University of Washington School of Medicine, for example, found new or recently trained radiologists were 2 to 4 times more likely to misread a mammogram than more experienced peers.
Do I Have a Case?
If you believe a health care provider may have missed your or a relative’s cancer, there may be a valid cause for action in your case. The specific facts of your or a loved one’s case must be evaluated by experienced attorneys and medical professionals.
At The Becker Law Firm, we remind potential clients that medical malpractice cases are incredibly fact-specific, and that personalized evaluations are needed before anything can be said about the merits of a case. Because we know it is not uncommon for patients to seek help after being turned down by other law firms, we also like to remind potential claimants that just because another firm did not accept your case, does not mean you don’t have one; malpractice cases are highly complex, and not all firms have the willingness or resources to handle them, or skill to fully investigate a delayed diagnosis case.
Our firm offers free and confidential case evaluations, during which we obtain as much information from patients and families as necessary to assess if you or a loved one is a victim of a negligent delayed diagnosis. In Ohio, state law requires medical malpractice claims to be supported by an affidavit of merit executed by an appropriate medical expert (ORC 10(D)(2)).
How Long Do I Have to File a Cancer Misdiagnosis Claim?
Given the need to vet potential malpractice cases, conduct thorough investigations, collect and preserve evidence, and structure the strategy and arguments to support a claim, families with questions about a potential case should seek help from experienced attorneys as soon as they can.
The statute of limitations establishes a deadline beyond which plaintiffs cannot file claims or recover compensation for damages caused by the negligent acts of others.
In Ohio, the statute of limitations for medical malpractice cases is generally set at just 1 year (O.R.C. § 2305.113). However, when the “clock” starts ticking will depend on the facts involved in a case, as there may be a few different possibilities. Generally, the 1-year statute of limitations will begin from the date when the malpractice or injury occurred; however, there may be exceptions:
- 1 year from the date a victim “discovered” their injuries: There are cases where victims may not discover their injuries or the role negligence may have had in causing them. This is particularly common in medical malpractice cases, as patients lack the medical expertise to fully evaluate a doctor’s conduct, or to assess and diagnose themselves. Because it may take months or even years for victims to discover their injuries and the possibility of malpractice, Ohio allows claimants in these situations to “toll” (delay) the statute of limitations – meaning they will have 1 year from the date of discovery to file a claim. Because Ohio also has a statute of repose, all malpractice claims must be brought within 4 years of the date of malpractice regardless of when a patient discovers their injuries.
- 1 year from the end of a doctor / patient relationship: In cases involving a missed diagnosis, patients may have 1 year from the date a doctor-patient relationship ended to file a malpractice lawsuit. Generally, this means the date of the patient’s last visit with the specific provider, as long as they were being treated for the same condition involved in the alleged malpractice.
- 1 year from a child’s 18th birthday: In medical malpractice cases involving children, Ohio allows those individuals or their families to file claims 1 year from the date the child turns 18 – no matter when the underlying malpractice occurred.
What Damages Can I Recover?
Although damages in each case varies, medical malpractice plaintiffs are generally entitled to a recovery of their economic and non-economic damages. There are many factors in final verdict or settlement amounts, but case value is generally correlated to the severity and scope of losses – both in matters involving injury and wrongful death.
Recoverable damages in malpractice claims may include:
- Lost income / wages
- Lost future earnings / lost earning capacity
- Medical bills and expenses
- Physical pain and suffering
- Loss of services and society
- Emotional distress / mental anguish
- Loss of companionship / consortium / emotional support
- Burial and funeral expenses
Should My Doctor Have Ordered Tests / Mammograms / Biopsies?
Patients diagnosed with late-stage cancers following regular treatment with a doctor often question whether their providers should have ordered various tests or performed certain types of screening or exams. These are not easy questions to answer, especially without an evaluation of the surrounding circumstances.
Health care providers have a duty to provide care that meets the accepted standards of their profession. Whether a patient makes an appointment with their doctor over concerns about various symptoms, has a long-standing relationship with a doctor who knows about their family history and higher cancer risks, or seeks care for ailments which ultimately turn out to be cancer symptoms, doctors and health care practitioners will be scrutinized with the same legal measurement:
Did the treating provider fail to act as a reasonably skilled and competent medical professional would be expected to act under the same or similar circumstances?
If the answer is yes, then there may be a potential malpractice case worth evaluating. As part of that process, our attorneys certainly look into what, if any, tests were performed, when they were performed, why they were performed, and what became of the results.
Our line of questioning applies the same legal standard. For example:
- Were tests interpreted correctly and in accordance to accepted standards?
- Did a doctor read tests incorrectly as a false negative when the patient did in fact have cancer?
- Would a reasonably skilled provider have been able to interpret test results correctly?
- Why didn’t a provider request or order tests?
- Would tests have provided the patient with a better outcome?
