Finding out that you have been diagnosed with cancer can be devastating. However, the key to beating cancer is proper screening, testing, and diagnosis. In the event a medical professional fails to make the diagnosis that they should, the results can be catastrophic. If you suffered an adverse outcome due to a medical provider’s negligence in misdiagnosing cancer, you may be able to pursue a medical malpractice claim.
How is Cancer Misdiagnosed?
A cancer misdiagnosis can be a matter of life and death. Unfortunately, many cancer diagnoses are either missed or come too late. When a doctor makes such a mistake, they may have been negligent in providing medical care. To show medical negligence in a cancer misdiagnosis case, a plaintiff must prove that: 1) there was a doctor-patient relationship; 2) the doctor acted negligently which led to the misdiagnosis; 3) the misdiagnosis caused harm to the patient; and 4) the misdiagnosis resulted in damages.
Specifically, cancer can be misdiagnosed in a variety of ways, including the following:
- Ignoring the patient’s requests to check lumps or moles
- Not listening to the patient’s complaints about their symptoms
- Not requesting the proper diagnostic tests
- Misinterpreting the test results
- Ordering the incorrect tests
- Mixing up test results
- Misdiagnosing a tumor as benign
- Mishandling test samples
The statute of limitations in these cases can be complex and it is best to consult with an experienced medical malpractice attorney as the specific details of a case may impact the deadline. While the standard statute of limitations is two and a half years from the “act, omission, or failure” or the date of “last treatment” to file a claim, in some cases, the statute of limitations is expanded. Under Lavern’s law, the victim of a failure to make a cancer diagnosis has two and one half years from the date the patient knew or reasonably should have known that malpractice had occurred.
Some malpractice victims are afforded even less time to bring a claim. A malpractice victim who suffered due to the negligence of a municipally owned health facility or hospital would only have 90 days from the date of the malpractice to notify the entity that they were bringing a claim. The victim would then only have one year and 90 days from the time of the malpractice to file suit.
Victims of a failure to diagnose cancer due to a municipally owned medical facility still must abide by the 90-day notice of claim rule, but now that 90-day clock does not start to run until the time when the patient knew or reasonably should have known that malpractice occurred.
What Damages are Available in a Cancer Misdiagnosis Case?
The party who should be held liable will depend upon the specific facts. For instance, a doctor, nurse, hospital, or laboratory may incur liability based on the medical error that was made.
Critically, any form of cancer can be misdiagnosed, including lung cancer, breast cancer, skin cancer, prostate cancer, colon cancer, mouth cancer, and various other types of cancer.
Regardless of the form of cancer, there are a wide variety of damages that may be available in a cancer misdiagnosis claim, such as:
- Medical expenses — Compensation may be awarded for past and future medical bills related to the misdiagnosis and any treatment needed for it.
- Lost income — A victim of a cancer misdiagnosis may be compensated for their lost income and wages as a result of the misdiagnosis, along with loss of future earning potential.
- Pain and suffering — In a medical malpractice claim, a victim may be entitled to recover compensation for the physical pain and mental anguish they experienced due to the misdiagnosis. Other non-economic damages for loss of enjoyment of life and loss of consortium may also be awarded.
- Out-of-pocket costs — A cancer misdiagnosis victim may be eligible to recover the out-of-pocket costs they suffered due to the medical negligence.
If an individual passed away because of a cancer misdiagnosis, the surviving family members may be able to recover wrongful death damages. This category of damages can include medical costs, the loss of income the victim would have provided, funeral costs, and burial costs.
Contact an Experienced New York Medical Malpractice Attorney
If you suffered a cancer misdiagnosis due to a medical provider’s negligence, it’s essential to have an attorney who can help ensure the provider is held accountable. The Edelsteins, Faegenburg & Brown, LLP is a New York personal injury firm that has been advocating for the victims of medical malpractice since 1937. Handling every case with the time and attention it deserves, we have earned a well-deserved reputation among our clients and colleagues for securing substantial settlements and verdicts. Contact us to schedule a free consultation at (212) 425-1999 today.