Finding out that your doctor missed your cancer diagnosis can be terrifying. You trusted your doctor with your care, and they violated that trust. Their mistake could have catastrophic or even fatal consequences for you.
Knowing what to do after your doctor missed such a significant diagnosis can be confusing. That’s why the medical malpractice attorneys at Powers & Santola, LLP have provided a step-by-step guide below for patients who suspect or have confirmed that their doctor missed a cancer diagnosis.
Seek a Second Opinion
The most important thing is for you to receive an accurate diagnosis. You need to know with certainty whether or not you have cancer and what your prognosis is.
If your doctor missed a cancer diagnosis, you should immediately seek a second medical opinion to confirm the error and get the correct diagnosis.
Consult with a different healthcare provider to receive an independent evaluation of your condition. Provide them with the following information:
- The symptoms you’ve been experiencing
- The date you began experiencing symptoms
- Any change in your symptoms
- The tests you took and their results, if you know them
- What medical condition your original doctor first diagnosed you with, if any
- How the old doctor confirmed the cancer diagnosis
- Your medical records
This careful analysis can help ensure you receive an accurate diagnosis and establish a link in your medical records regarding the other doctor’s mistakes.
Gather Medical Records
Medical malpractice claims are highly paper-intensive. You will need to show the medical care you received and how the diagnostic error occurred.
You have a right to request your own medical records. You may need to complete a form and specify which records you want. Do not mention anything about your suspicions regarding medical malpractice.
Gather all medical records related to your care, including:
- Documentation confirming each doctor visit you had
- Doctor’s notes
- Test results
- Lab results
- Imaging scans
- Pathology reports
Contact a Medical Malpractice Attorney
Many personal injury lawyers work on a contingency-fee basis and offer a free consultation to prospective clients for the following purposes:
- Discuss the laws surrounding medical malpractice lawsuits
- Explain the legal threshold for bringing a viable medical malpractice claim
- Describe the potential client’s rights
- Outline the legal options for seeking compensation
- Identify who may be responsible for your failed diagnosis
- Determine whether you have a viable legal claim against a negligent healthcare provider
Medical malpractice claims are highly complex, involving an intersection between the law and medicine. Your lawyer must be able to understand the laws related to personal injury claims, as well as the science behind your delayed diagnosis.
Look for an attorney experienced in medical malpractice claims. There is simply no substitute for relevant experience in this realm.
Build Your Claim
If you decide to pursue a medical malpractice claim for your failed diagnosis, you will be the plaintiff in a personal injury case. This requires you to show each element of the claim by proof by the preponderance of the evidence. This legal standard means that the facts are more likely than not as you allege.
Work with your attorney to establish the following legal elements:
The Existence of a Doctor/Patient Relationship
The failed diagnosis must have come from someone with whom you shared a doctor/patient relationship. For example, if you mentioned your symptoms during a dinner party and a doctor gave a flippant response about what the condition might be, but was not your treating doctor, this relationship would not exist.
You can establish the doctor/patient relationship with your medical records that show the doctor who failed to diagnose you was the doctor you visited. You may have records that indicate you sought care from a particular doctor’s office or medical facility that you can use to establish this relationship.
The Doctor’s Deviation from the Standard of Care
Next, you must be able to point to some mistake that the doctor made. This could be something the medical provider did or failed to do, such as:
- Not conducting a physical exam
- Not requesting a complete family and medical history
- Dismissing your symptoms
- Not ordering the appropriate tests
- Misinterpreting the tests
- Not following up on tests
- Not referring you to a specialist
- Not communicating with your other healthcare providers
You may have medical records that indicate the doctor had failed to diagnose you with the proper condition or diagnosed you with some other medical condition. Your medical records can also show the absence of information, such as your doctor not ordering tests that should have been ordered under the circumstances.
A medical expert will need to be retained who can explain what the applicable standard of care was under the circumstances. This is the level of care that another healthcare provider in the same specialty area and geographic area would have provided under the same or similar circumstances. The expert basically says what another medical provider would have done, such as order tests or refer the patient to a specialist.
Next, the medical expert explains what your healthcare provider did and how that deviated from the accepted standard of care.
Causation
You must be able to show that the healthcare provider’s deviation from the accepted standard of medical care is what caused the wrong diagnosis, not some other cause. For example, if you ignored symptoms or did not provide your doctor with complete information, they may not have had the information necessary to diagnose you properly. A medical expert can help establish the link between the medical provider’s deviation from the standard of care and your failed diagnosis.
Damages
A failure to diagnose cancer can have significant consequences. The delay in your receiving the care you needed could have resulted in the cancer spreading to other parts of your body. You could have been rendered permanently disabled or unable to work for a significant time while you were receiving treatment.
Your medical treatments may be more aggressive than they would have been if the doctor had accurately diagnosed you. You could be experiencing significant pain from the spreading cancer or the medical treatment you are now receiving. Tragically, a failure to diagnose cancer in a timely manner can have deadly consequences.
Economic or special damages in a failure to diagnose cancer case can provide compensation for:
- Medical expenses: You may have incurred additional medical bills for hospital stays, surgeries, and various medical treatments. You may also have ongoing medical costs for rehabilitation and therapy. You can seek compensation for these losses, as well as anticipated future medical expenses.
- Funeral costs and burial expenses: In a wrongful death claim, the family may be able to recover compensation for funeral expenses and burial costs.
- Lost wages: You can pursue compensation for the income you lost while recovering from your injuries and seeking medical treatment.
- Reduced earning capacity: Medical malpractice victims may also be able to recover compensation for the long-term losses or reductions in their earning capacity.
- Modifications: Medical malpractice victims can pursue compensation for the modifications they have to make to their homes or vehicles if they suffer from permanent disabilities or impairments related to the cancer spread.
- Out-of-pocket expenses: Personal injury victims may incur various expenses, such as co-pays, deductibles, and travel costs for medical appointments, for which they can seek reimbursement.
Additionally, medical malpractice victims can seek compensation for their non-economic or general damages, such as:
- Physical and emotional pain and suffering
- Mental anguish and grief
- Scarring and disfigurement
- Psychological trauma
- Loss of enjoyment of life
Non-economic damages are more subjective and difficult to quantify. One of the best ways to prove their existence is by keeping a detailed diary of information, such as:
- Your symptoms
- What you reported to your doctor and when
- How you responded to treatment
- Days you attended medical visits
- A description of your pain
- A score of your pain on a one-to-ten scale
- How the delayed cancer diagnosis has impacted your life
- The psychological trauma you experienced due to the late diagnosis
- How your condition affects your relationships with loved ones
An experienced lawyer can help gather the information you need to prove these elements.
Document Your Damages
You can help your lawyer tremendously with your case by keeping documentation related to your losses, such as:
- Medical expenses: Medical bills, payment arrangement documentation, medical records
- Funeral costs and burial expenses: Receipts and invoices
- Lost wages: Check stubs, wage loss statements, or a letter from your employer if you’re employed, or tax returns, invoices, contracts,
- Home or vehicle modifications: Invoices or estimates from general contractors and vehicle modification specialists
- Out-of-pocket expenses: Receipts and invoices
- Pain and suffering: A daily plan journal
Your attorney may help build other aspects of your claim by working with expert witnesses. For example, a vocational expert or economic expert may consider various factors to determine your loss of earning capacity, such as:
- Your occupation
- Your industry
- The history of promotions and earnings
- Job skills, education, and training
- Your age
- A market analysis of your career and its trajectory
Work with Medical Experts
Your attorney will need to hire an expert witness to prepare a certificate of merit to accompany your legal complaint, as required by New York law. This certificate verifies that there are legal grounds to bring forth a medical malpractice claim.
You may work with this medical expert or others so they can get a better understanding of your condition, the reason(s) for the delay in your diagnosis, and how the delay has affected your life. They may testify in your case about these matters. Your attorney can help determine the best expert witnesses to retain for your case.
Focus on Your Health and Recovery
The most important thing right now is your health and recovery. You need all of your energy to fight this disease, and don’t need to be derailed because negligent healthcare providers don’t want to take responsibility for their actions. Your attorney can focus on the legal aspects of your case while you focus on your recovery, such as:
- Handling communication with the insurance company
- Working with medical experts to prove how the defendant medical provider deviated from the standard of care
- Demonstrating the impact of the delayed diagnosis on your life and how you would have had a better outcome if your condition had been diagnosed sooner, such as by having a more favorable prognosis, less invasive medical treatment, or reduced medical costs and pain
- Gathering evidence to establish the full extent of your damages, including future anticipated losses
File a Lawsuit within the Statute of Limitations
You will have to take timely legal action to preserve your right to recover compensation from the negligent medical provider. The statute of limitations to file most medical malpractice and personal injury lawsuits in New York is two and a half years.
However, New York has a special law pertaining to cases involving a failure to diagnose or delayed diagnosis of cancer, known as Lavern’s Law. Under this law, the statute of limitations does not begin until you reasonably could have discovered the cancer and your doctor’s mistake. However, you are subject to a maximum time limit of seven years to file a lawsuit, even if you only recently learned of the mistake.
If you don’t file a lawsuit within the applicable time limit, your case can be dismissed as untimely, and you can lose the chance to recover any compensation for the harm you’ve endured.
Seek Legal Representation from Powers & Santola, LLP
When doctors abuse the trust we put in them and cause a serious delay in diagnosis, they should be held accountable. For decades, the medical malpractice and personal injury attorneys at Powers & Santola, LLP have been holding negligent parties responsible for the harm they’ve caused others. We’ve successfully recovered hundreds of millions of dollars in compensation for our clients and are prepared to fight just as diligently for you, too.
Contact our dedicated lawyers today for a free, no-obligation consultation.
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