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VA Ordered to Pay $975,000 for Delayed Cancer Diagnosis of Deceased New York Man

A delayed cancer diagnosis is often a death sentence for patients who do not learn the truth about their condition until it is too late. But even in cases where a health care provider admits a delay violated the accepted standard of care for the medical profession, that is not the end of the matter. The victim’s surviving family must also establish the amount of their legal damages in court.

A recent decision from the New York-based U.S. Second Circuit Court of Appeals, Gonzalez v. United States, provides a useful illustration. This was a wrongful death lawsuit arising from a delayed cancer diagnosis made by a hospital operated by the U.S. Department of Veterans Affairs (VA). The victim in this case was 75 years old when he sought treatment at the emergency room at a New York-based VA hospital.

An emergency room doctor examined the victim and ordered a chest X-ray. The X-ray showed an “abnormality” in the victim’s lung. A second doctor–presumably the radiologist–reviewed the X-ray and recommended a CT scan. But the emergency room doctor never ordered the CT scan or even made a note in the victim’s chart about the abnormality found in the X-ray. Nor did the emergency room doctor advise the victim’s primary care doctor about any follow-up.

About a week later, the victim started primary care treatment with a nurse practitioner at the VA hospital. The victim did not complain of any chest pain during his initial visit. And the nurse practitioner noted that the victim appeared to be in good shape for a man of his age.

Unfortunately, 10 months later, the victim returned to the VA hospital’s emergency room presenting with difficulty breathing, a sore throat, and weight loss. This led to a diagnosis of Stage III lung cancer. Within a month, the victim was placed on a feeding tube because his muscles were too weak. He remained on the breathing tube and received radiation and chemotherapy treatments for the next two years. During this time, he lost the ability to speak and walk. Sadly, the victim ultimately succumbed to the cancer in August 2018.

Was $850,000 Enough for the Victim’s Two Years of Pain and Suffering?

The victim’s wife of 57 years subsequently filed a wrongful death lawsuit against the VA. Such lawsuits are permitted under a law known as the Federal Tort Claims Act (FTCA), which waives the government’s normal immunity from civil lawsuits. Although federal courts have their own process for handling such lawsuits, the substance of the claims–including any award of damages–must be made under New York law.

As is common in wrongful death cases arising from medical malpractice, such as a delayed cancer diagnosis, the widow presented expert testimony. An oncologist provided testimony explaining that based on the victim’s X-ray when he first visited the VA hospital emergency room, he had Stage I lung cancer. Had he been properly diagnosed at that time–and not 10 months later–he faced a “reasonable chance of a cure.” More precisely, the expert said the victim would have had a 48 percent chance of surviving the lung cancer and would not have developed the later complications that led to his death.

The government produced its own medical expert. This oncologist said that he could not determine the exact stage of the victim’s lung cancer based on the initial X-ray, but he conceded that it was likely less than Stage III. And had the victim received a Stage I diagnosis, he could have been treated surgically without the need for chemotherapy.

To its credit, the government saw it had a losing case on this point. Before trial, the VA admitted that its doctors acted below the accepted “standard of care.” The case proceeded to trial to resolve two questions: Whether the delayed cancer diagnosis was the proximate cause of the victim’s death, and if so, how much was his widow entitled to in damages?

There is no right to a jury trial under the FTCA as there would be under New York law, so the actual trial was held before a federal judge over a two-day period. The judge agreed with the widow that it was “very likely” that her husband had Stage I lung cancer when he first went to the VA hospital, and that the resulting 10-month delay in his diagnosis “was a substantial factor in causing [the victim]’s injuries and death.”

As to the issue of damages, the judge ordered the VA to pay $850,000 for the victim’s pain and suffering, $55,000 for the widow’s loss of the victim’s “services,” $50,000 for her loss of the victim’s consortium, and approximately $20,000 for medical and funeral expenses.

The widow appealed. She argued the amount of damages awarded for pain and suffering and loss of consortium were too low. More precisely, she argued that the trial court failed to articulate its reasons for calculating the amounts it did, which were not consistent with New York law.

In August 2023, a divided three-judge panel of the Second Circuit upheld the trial judge’s award of damages. The majority concluded that the amount awarded “did not deviate materially from what would constitute reasonable compensation under New York law.”

One judge dissented, stating that he would have reversed the trial court’s award as to pain and suffering. The dissenting judge believed the trial court did not calculate the award in accordance with federal rules, especially since in similar cases, New York courts awarded far more than $850,000 for a delayed cancer diagnosis. He would therefore have returned the case to the district court for a more thorough explanation of its reasoning.

Contact an Albany Delayed Cancer Diagnosis Attorney Today

We all rely on doctors to tell us when something is seriously wrong with our bodies. When a doctor violates that trust, it is important to hold them, and the institutions that support them, legally accountable. If you need legal advice from an experienced Albany delayed cancer diagnosis lawyer, contact Powers & Santola, LLP, today to schedule an initial consultation.

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