Failure to Diagnose Cancer

Being diagnosed with cancer is shocking and life changing.  It’s even worse when a doctor’s delay in diagnosis causes the need for more aggressive treatment or changes in the patient’s prognosis. When that occurs, the patient may seek damages from the delay including pain and suffering, loss of enjoyment of life, a shortened life expectancy, loss of earnings or earning capacity, and damages for the lost years which are the wages the patient would have earned in the future had it not been for the delayed diagnosis.

In a recent case, a 55-year-old woman in the hospital for kidney and heart issues had a CT scan of her chest.  The radiologist saw an irregularly shaped lesion on her right lung, mentioned it in his report and suggested further imaging to rule out cancer.  The ordering physician did nothing in response to this finding. The discharge summary included the complete findings of the CT scan and was sent to the patient’s primary care physicians.  They too failed to see or act on the reported lesion.  The patient saw her PCPs multiple times over the next 19 months complaining of breathing difficulties, but no x-rays or CT scans were done.  When she was finally admitted to the hospital with respiratory failure, a CT scan showed a tumor on her right lung the size of an orange and lung cancer was diagnosed.  It was a non-small cell lung cancer which is curable if caught early.  She went from a vital woman enjoying her life and family to an invalid over the following 10 months enduring horrible pain and suffering and loss of the enjoyment of her life.

A woman may feel a lump in her breast and go to her OBGYN.  Instead of ordering a mammogram, the doctor tells her it’s nothing to worry about and sends her on her way.  Ten months later, she has a mammogram and breast cancer is diagnosed.  Because of the delay in diagnosis, she has to have a mastectomy instead of a lumpectomy, then endure radiation treatment and chemotherapy.  Early breast cancer can be treated and cured without the harsh side effects of radiation and chemotherapy.  I have resolved many such claims against OBGYNs.  In other cases, the OBGYN sends the patient for a mammogram, but the radiologist misreads it and the diagnosis is delayed.

Colorectal cancer is another frequent subject in my practice.  It is curable when caught early and can be diagnosed with colonoscopies.  The Centers for Disease Control and The National Cancer Institute issue guidelines on screening colonoscopies for asymptomatic patients aged 45-75; namely, every 10 years.  They suggest no screening for younger patients.  Many physicians blindly follow these guidelines even if their 42-year-old patient has symptoms like rectal bleeding and abdominal pain so no colonoscopy is ordered.

In one such case, a 43-year-old working father with a wife and three children was having rectal bleeding, His primary care doctor, thinking he was “too young” to have colon cancer, attributed the bleeding to hemorrhoids.  No diagnostic testing was done.  Episodic rectal bleeding and abdominal pain continued for 14 months with no diagnostic testing.  Finally, his abdominal pain was so bad he went to an urgent care center and was referred to a gastroenterologist.  A colonoscopy was done and a large cancerous tumor was discovered.  The cancer was at an advanced stage requiring a major resection and chemotherapy.  The client suffered horrible pain, loss of energy, and his ability to enjoy his life with his wife and children, loss of income, and a shortened life expectancy.  His wife also suffered the loss of her husband’s household assistance, companionship, comfort, and sexual relations.  After the court granted an early trial date, the doctor agreed to settle on the eve of trial including a funding of annuities for his children.