Delayed Diagnosis of Cancer

A Medical Malpractice

As the ability to diagnose and treat cancer improves the consequences of a doctor’s failure to diagnose cancer becomes more significant. A patient’s survival rate from cancer is directly linked to the type and stage of the cancer when it is discovered. Diagnosis of cancer at a later stage can mean that the patient may undergo more rigorous and painful medical treatment than would otherwise be necessary had the diagnosis been made earlier.

With many forms of cancer, early detection and diagnosis of cancer can significantly impact the long term impact of the disease and quality of life for the patient.  Many cancer treatments are most effective before the disease spreads.  Therefore, if a doctor fails to detect symptoms or recognize complaints which would lead a reasonable doctor to diagnose cancer, the patient may be deprived of treatment options which could lead to a recovery.

Advances in Treatment

Improvements in cancer treatment have improved the chance of recovery from certain cancers if the cancers are detected and treated early. It is the success of these advances in treatment that now enables patients to bring lawsuits to recover damages by reason of the delay or failure to diagnose cancer.

Types of cancers that respond well to early treatment include cancer of the colon, breast, lung, prostate, cervical, testicle, kidney and non-small cell cancers.  Some cancers have a poor chance of recovery regardless of when the cancer is detected.  These types of cancers include small cell lung cancer, pancreatic cancer, and ovarian cancer (unless early detection of the primary site before spread is made).

Since so many types of cancer are becoming treatable, early diagnosis is important to prevent death or other serious health outcomes.  A failure to diagnose or a delay in diagnosis can result in unnecessary treatments, costs, and a lower survival rate.

Representative Cases

The medical malpractice lawyers at Obradovich Law have successfully resolved or are currently prosecuting cases of delayed or failed diagnosis of cancer cases involving acts of negligence that include:

Failure to communicate to the patient or her successive doctor the results of an x-ray of the lung reporting suspicious findings of a female patient known to be a regular smoker which resulted in her death

Failure to arrange regular pap smear tests or confirm that they were carried out by a specialist resulting in the death of the patient

Failure of a pathologist to identify and report on the existence of malignancy in a specimen of cervical tissue resulting in the death of the patient

Failure to follow up to obtain the results of a CT scan of the lung reporting suspicious findings of a male patient known to be a smoker for a period of one year resulting in the loss of the option of surgical treatment and the metastases of the cancer

Failure to refer a female patient with a family history of colorectal cancer for regular colonoscopy screening resulting in her death

Failure to identify the presence of cancerous tumour during the performance of a colonoscopy resulting in the patient’s death

Failure of a genetic counsellor to carry out genetic testing in a female patient with a family history of breast cancer resulting in the loss of a breast and removal of the ovaries

Failure to confirm the complete removal of cancerous tumour from the thyroid following surgery in the presence of a post-operative CT scan with suspicious findings resulting in the need for invasive surgery and psychological harm

If you or a loved one has suffered as a result of a failure to diagnose cancer you may contact us by calling our toll free number or completing our case evaluation form to determine whether your situation is a candidate for legal action.

Errors Resulting in a Failure to Diagnose Cancer

Failure to Test

A doctor may neglect to order imaging, biopsies, blood tests or other investigative or diagnostic tests if the patient’s complaints or symptoms are not taken seriously, a proper family or individual history is not taken, or risk factors are not recognized and investigated.

Misinterpretation of Results

Radiologists and pathologists are also involved and responsible for patient care although they typically will not even meet the patient. Proper and early diagnosis depends on the correct examination and interpretation of ultrasounds, mammograms, X-rays, CT-scans, MRIs, biopsy samples and pathology slides. Failures in the interpretation of imaging and pathology samples may cause a delay in the diagnosis and the availability of treatment options for patients.

Failure to Communicate

A delay in diagnosis or treatment can occur if a doctor fails to respond to or communicate test results to the patient or fails to follow up to obtain test results that have been ordered. Communication errors can also be caused by other health care professionals who may fail to properly label or handle specimens obtained for examination or failed to transmit the results of testing.

Failure to Refer

A physician may fail to recognise the complexity of a diagnostic situation or appreciate the significance of certain symptoms and findings that warrant referral of the patient to a specialist for proper evaluation and assessment and management of the patient’s care. A failure to refer to a specialist can result in a delay in diagnosis and treatment.

Detection and Screening

The practice of medicine now employs precancerous and early stage cancer screenings to detect and diagnose cancer and those patients at risk for cancer. These screening tools have become standards accepted within the medical community as tests and procedures which reduce the incidence of missed detection, and, assist in earlier cancer diagnosis and treatment. Screenings in common use include:

genetic testing, mammograms, ultrasounds and manual breast examination (for breast cancer)

fecal occult blood tests, flexible sigmoidoscopy and colonoscopies (for colon cancer)

Pap smear tests (for cervical cancer)

chest X-rays (for lung cancer)

A failure to perform these and other tests, or, not performing them in a timely manner may constitute medical negligence or malpractice.

For some cancers, such as cervical, lung and skin cancer, often a simple blood test may reveal anemia or an increased white blood cell count, or testing of the urine or stool (such as guaiac test) may reveal the presence of blood, both of which can indicate the presence of pre-cancerous cells or cancerous tumors which can then be examined in a biopsy to determine if the growth is benign or malignant.

Another important screening tool is the taking of a proper family and individual medical history.

Types of cancer

Breast Cancer

This responds well to treatment but can go undetected for a long time. Failure to diagnose may result in loss of one or both breasts or death. Breast cancer is the second leading cause of cancer deaths in women (after lung cancer), but early detection can prevent the spread of the cancer. When breast cancer is detected early and confined to the breast the five-year survival rate is now almost 100%.

Cervical Cancer

This is easily detectable by Pap smear tests which should be done annually in women over the age of 40. Survival rates are high if detected early. A failure to diagnose may lead to infertility or death

Colon and Colorectal Cancer

A failure to diagnose cancer of the colon may occur if complaints of rectal bleeding are not properly assessed or if screening is not done for patients at high risk or over the age of 55. Colon cancer is the second leading cause of death in cancer patients. Colorectal cancer can be successfully treated if pre-cancerous polyps and growths are discovered and removed at an early stage.

Prostate Cancer

This has a good recovery rate if treated early.

Special Legal Constraint in Failure to Diagnose Cases

In Ontario the loss of a chance or opportunity to obtain timely treatment is not compensable. In a failure to diagnose or delayed diagnosis cancer case the patient must be able to prove that had the diagnosis been made at the proper time that it is probable or more likely than not that the patient’s health outcome would be materially better whether by survival, prolonged life expectancy or financial consequences. In other words it is not sufficient that timely treatment would provide the patient with the chance of a better result. It is necessary to have medical evidence that the outcome would probably be better with timely treatment.

This is an important consideration in this type of case as cancers have diverse growth patterns, rates of malignancy and metastasize differently all of which have prognostic implications for the patient. These prognostic implications have legal significance because of the requirement that a simple loss of chance is not sufficient to give rise to a right of compensation. Where the patient can meet the test and prove that the failure to receive timely treatment would ordinarily deprive him or her of a better outcome there may still not be compensation if the patient does in fact fortunately respond to treatment so that they are in the same position as if the diagnosis had been made in a timely way.

Adverse Consequences

The longer cancer remains undiagnosed, the more complicated, expensive and painful treatment becomes. If treatable forms of cancer are detected at an early stage then it is possible that radical treatment involving radiation, chemotherapy, and disfiguring surgery may be avoided. A delay in treatment can result in the growth and spread of cancer with adverse consequences to the survival of the patient.

In these cases we advance and recover claims for compensation for pain and suffering, anxiety and depression, loss of care, companionship and guidance, medical treatment and drug expense, lost income, loss of financial dependency, housekeeping, personal and attendant care costs, the cost of home or hospice care, funeral, burial and memorial expenses.

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