Lung Cancer and Medical Malpractice

Recently the Canadian government has come in for criticism on its flagging resolve to continue to up the bar on the requirements for graphic display of the effects of lung cancer on the packaging of cigarettes. Thankfully medical doctors have been traditionally been very vocal in decrying the deleterious effects of this societal affliction. This outcry has led to understanding on the part of government and the public of the tremendous health costs associated with treating lung cancer and other diseases arising from cigarette consumption. Unfortunately the long term effects of smoking and its persistence in the population continue to give rise to the occurrence and presentation of lung cancer in such a frequency that it is not always diagnosed when it should be. Unfortunately the delay in diagnosis results in a failure to treat which in some circumstances will constitute medical malpractice. Any conclusion concerning whether medical malpractice has occurred should only be made after consultation with medical malpractice lawyers.

Lung Cancer: A Leading Killer of Canadians

According to a statistical report, published by the Steering Committee of the Canadian Cancer Society in April 2009, lung cancer remains the leading cause of cancer death for both men and women in Canada. Sadly it occurs with such a frequency that general and family physicians need to consider its possible appearance in the course of their regular diagnostic clinical practice.

A delay in the diagnosis of lung cancer can have a detrimental effect on the patient’s prognosis. While a timely diagnosis may elude a skilled physician, system failures and physician performance issues are known to contribute to a delay in diagnosis.

CMPA Review

The Canadian Medical Protective Association has published a review of legal cases and complaints made to a regulatory authority or governing college that involved a delay in the diagnosis of lung cancer between 2003 and 2009. A total of 89 cases were examined of which 78 were closed at the time of the review. Most of the patients in the case series presented with one or more respiratory or systemic symptoms such as persistent cough, coughing up of blood or mucous containing blood (hemoptysis), shortness of breath (dyspnea), chest pain or weight loss.

The Causes of Diagnostic Delay

The review comments only on the closed cases. Of these half (39) had more than one clinical issue. Peer experts were retained to review the cases. They were of the opinion that the issues primarily contributing to a delay in the diagnosis of lung cancer were:

Delay or failure to order initial diagnostic tests, e.g., chest X-ray

This was most often due to inadequate evaluation of patients who presented with respiratory symptoms (e.g., persistent cough, dyspnea) and/or risk factors (e.g., history of smoking).

Failure to detect an abnormality on diagnostic imaging studies

This occurred most often when a radiologist did not perceive a lung mass on a chest X-ray, either for patients who presented with respiratory symptoms or for patients who had a chest X-ray for other reasons.

Delay or failure to respond to abnormal test results or to arrange appropriate follow-up

This occurred most often in these situations:

a)      failure to receive test results

b)      actions or oversights by other health care personnel, e.g., misfiling reports

c)       failure to repeat initial tests or order further diagnostic tests

d)      failure of the patient to attend for follow-up care.

The Potential for Malpractice

The results of the study suggest that clinicians who wish to avoid potential malpractice claims should:

a)      consider lung cancer as part of the differential diagnosis when a patient with risk factors presents with symptoms that may be indicative of this condition and if order the appropriate diagnostic tests

b)      confirm that the completed diagnostic imaging requisition contains pertinent clinical information

c)       interpret the diagnostic imaging in light of the information on the requisition

d)      ensure an effective tracking system is in place in their practice or facility for the review of diagnostic tests

e)      follow up with the radiologists’ recommendations for further diagnostic tests

f)       confirm the appropriate resolution of an imaging abnormality, particularly if the patient’s condition fails to improve.

Malpractice Case Criteria for Lung Cancer Cases

While a delay in diagnosis is always unfortunate, by itself it will not be the basis on which a legal claim can be asserted. Lung cancer is a particularly rapid and deadly form of the disease. In order to recover damages it is necessary to demonstrate that more likely than not the delay in diagnosis resulted in a reduced life expectancy. This is a conclusion that must be proven by medical evidence and will not be presumed by the courts. Some lung cancers if detected early are amenable to surgical removal. In this situation the failure to make a timely diagnosis is often fatal and will have devastating consequences for the patient and their family. More information on legal actions can be found on our medical malpractice litigation page.

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