Diagnostic errors are unfortunately quite common when it comes to detecting cancer in patients. While these errors may be rectified later, any delay in a correct cancer diagnosis can seriously harm a patient. Indeed, a delayed diagnosis often means a delay in starting treatment, which can lead to further complications and potentially death.
At the same time, it is important to understand that not all cases involving a delayed cancer diagnosis are classified as medical malpractice by New York courts. It is not enough to simply prove that a doctor or radiologist made a mistake that led to a delayed cancer diagnosis. Rather, the legal burden or proof is on the patient to show the delay resulted in some injury or harm to them. Proof of injury is a critical element of any New York medical malpractice lawsuit.
Is Six Weeks a Long Enough Delay?
One thing a court will look at is the length of the delay. In other words, how much time elapsed between a missed and a correct cancer diagnosis? As the patient, you may feel that any delay is unacceptable. But the courts are often more forgiving than you might think when the delay is a few days or weeks.
Consider this recent decision from the Appellate Division, Second Department, Kelly v. Gonzalez-Torres. In this case, the plaintiff’s doctor examined her and identified a “mass” in her right breast. The doctor recommended a mammogram and breast ultrasound a few weeks later. The plaintiff scheduled these procedures, and in the weeks leading up to her appointment, she “noticed certain thickening on her right breast and that the mass had grown from the size of a pea to the size of an egg,” according to court records.
Nevertheless, when a radiologist conducted the mammogram and ultrasound, he determined that the lump in the plaintiff’s right breast was “probably benign.” He advised the plaintiff to seek a follow-up mammogram in six months. He also suggested the plaintiff could seek a biopsy if she wanted a second opinion. The plaintiff did just that and had a biopsy six weeks later. That biopsy determined the lump was, in fact, cancerous. The plaintiff subsequently received extensive treatment, including chemotherapy and a total mastectomy of the right breast.
The plaintiff subsequently sued the radiologist who performed the original mammogram. In effect, she alleged that he departed from the accepted standards of medical care by misdiagnosing her lump as benign. In response, the radiologist submitted an expert affidavit claiming the delay caused no harm to the plaintiff, as she would have received the exact same treatment had the cancer been correctly diagnosed six weeks earlier.
The courts accepted the radiologist’s argument. The Second Department, affirming a trial court’s earlier decision, explained that “that the six-week delay in diagnosis was not a proximate cause of the plaintiff’s alleged injuries.” Dismissal of the lawsuit was therefore appropriate.
New York Law Extends the Amount of Time You Have to File a Delayed Cancer Diagnosis Claim
The key to the above case was that the missed cancer diagnosis was caught within a few weeks. But if several months–or years–had elapsed and the plaintiff did not receive a correct diagnosis, that would be a different story. The lesson here is that you need to do more than show your doctor or radiologist made a mistake. You also need to prove you suffered an injury that can be directly tied to the delayed cancer diagnosis. In legal terms, this is known as establishing proximate cause.
Of course, if there is too much of a delay, that can also affect your legal rights. New York medical malpractice laws include certain filing deadlines known as the statute of limitations. Normally, a malpractice victim has 30 months (2.5 years) to file a medical malpractice claim. In many cases, this 30-month clock can start to run on the date of the alleged medical error. But in the case of a delayed cancer diagnosis, the plaintiff may not be aware of the problem for weeks, months, or years.
In 2018, New York amended the 30-month statute of limitations to accommodate these types of delayed cancer diagnosis cases. The current rule still maintains the 30-month limitations period. But the clock will not start to run until the the date the plaintiff knew or reasonably should have known about the incorrect cancer diagnosis. So in a situation where, say, a person received an incorrect diagnosis in May 2021 but did not receive a correct diagnosis until May 2022, the 30-month clock would start to run in May 2022.
It is important to note, however, that New York also has a seven-year statute of repose applicable to medical malpractice cases. The statute of repose establishes the longest amount of time that may elapse between an act of wrongdoing and a civil lawsuit. In other words, if you discover a delayed cancer diagnosis more than seven years after the fact, you are barred from suing the negligent health care provider, even if you complied with the statute of limitations.
Contact Our Albany Delayed Cancer Diagnosis Attorneys
Delayed cancer diagnosis cases are highly fact-specific. This means that even if your missed diagnosis was caught within a few weeks, you may still be entitled to compensation if the late discovery altered your prognosis or treatment. You can also seek compensation for your psychological trauma and pain and suffering as a result of the delay. New York does not restrict a patient’s ability to seek these kinds of “non-economic” damages in a medical malpractice lawsuit.So if there has been a professional medical error in your case, you should not hesitate to speak with an experienced Albany delayed cancer diagnosis lawyer.
At Powers & Santola, LLP, we can review your case and advise you of your options for seeking compensation against a negligent doctor, radiologist, hospital, or any other health care provider whose actions may have contributed to your missed or delayed cancer diagnosis. Call us today at (518) 465-5995 or contact us online to schedule a consultation.
