The majority of cancer medical negligence cases involve the failure by a health care provider to identify or properly diagnose malignant cancer or treatment has been delayed. Four main issues need to be evaluated in every case wherein a health care provider fails to diagnose or properly treat a case of malignant cancer.Statute of Limitations
The first issue is whether the statute of limitations prevents a cause of action by the injured party against the health care provider. Generally, medical malpractice claims must be filed within two years of the date of misdiagnosis or the date of the mistake for a patient over 12 years of age. In most cases, the patient doesn't learn of the mistreatment or misdiagnosis for months or even a year or longer. Many patients cannot pursue a cause of action because two years or more have elapsed from the date of the "mistake" or "error." In some cases, a cause of action may be possible even if mistreatment or misdiagnosis occurred two or more years prior. Minors under the age of 12 get until their 14th birthday to bring a cause of action. It is very important to consult with an attorney as soon as you are made aware that a mistake was made in your treatment or diagnosis to avoid having your claim barred because of the statute of limitations.A Lost Chance?
The second issue is whether a proper diagnosis or proper treatment would have changed the outcome or course of treatment. In many cases the outcome, to the patient, would have been the same. The patient would have had to go through exhausting treatments or the patient would have succumbed to the cancer even if there was no malpractice. This is difficult for many people to accept. In many cases, the misdiagnosis or mistreatment lessened or decreased the patient's chance for survival. However, the Texas Supreme Court, has ruled that there is no cause of action for "lost chance of survival"; therefore, it is necessary to prove that the patient would have survived if the mistreatment or misdiagnoses had not occurred. Another way to look at this second issue is whether some act of the treatment provider caused an injury because of a delay in treatment. Usually, this is determined by the concept of: the length of delay. Did the length of the delay in treatment cause an injury? In some cases, the delay did not alter the outcome; however, the delay may have significantly altered the type of treatment. Then the issue is not that the ultimate outcome would have been different, but that the delay or misdiagnosis necessitated the use of surgery, chemotherapy, and/or radiation that was more invasive or radical than had the delay not occurred.Lasting Injury
The third issue is determining whether the patient suffered a compensable injury. In order to establish that the patient has a claim against the health care provider it needs to be established that: the health care provider's duty was to the patient, the health care provider violated that duty, the patient became injured, and the health care provider's violation was the proximate cause of injury to the patient. The injury has to be significant enough to justify spending the time and money required pursuing a cause of action against a health care provider.Was it Negligence?
The fourth issue is whether the medical professional(s) erred, or failed to act in such a manner that the conduct failed to meet the appropriate standard of care under the circumstances. Furthermore, the health care provider's breach must have caused the injuries. Top medical professionals specializing in pertinent fields are hired to make this determination. In cases that involve cancer treatment, we may retain the services of: oncologists; radiologists; forensic pathologists; or any other specialists needed to evaluate the patient's treatment.
Frequent types of oncology malpractice cases by anatomical site: breast, cervical and ovarian, colon/rectal, hemopoietic (primarily lymphomas), lung and thoracic, melanoma/skin cancer, and prostate. Contact us for more information.