Issue: October 2012
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Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

Introduction

Cancer Diagnosis Error

About 1,638,910 new cancer cases will be diagnosed in 2012. Approximately 577,190 Americans, or about 1,500 a day, are likely to die of cancer this year. Cancer cannot be treated or cured unless it is diagnosed as early as possible. A failure to diagnose or delay in diagnosing cancer can greatly reduce a cancer patient’s chances of winning the fight against the disease.

 

Most litigation resulting from errors in diagnosing cancer are based on theories of medical malpractice or negligence, but not all mistakes in diagnosing a patient amount to malpractice. Mistakes can be made even when the highest possible level of care is provided to a patient.

 

It is critical for attorneys to understand the medical etiology and terminology of cancer and the medical standard of care, and for physicians, insurers, and employers to learn strategies to handle potential malpractice liability.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for claims involving a failure to diagnose or a delay in diagnosing cancer, or the mistaken diagnosis of cancer?

Physicians:

How can liability for medical malpractice be avoided for an injury resulting from a diagnostic error involving cancer?

Insurers:

Can a payout under a medical malpractice liability policy for a mistaken diagnosis of cancer or a failure to diagnose cancer be avoided by proof that the physician was not negligent or there was no coverage for the injury?

Employers:

Can an employer be subject to liability for injuries resulting from a health provider’s failure to diagnose cancer?


Practice the Technique: Checklists

Attorneys:

Counsel must develop a list of facts and circumstances, specific to the client’s fact situation, which demonstrates proof of failure to diagnose cancer or misdiagnosis of cancer.

Physicians:

The other parties to the litigation will scrutinize the treating physician, medical experts, diagnosis, and treatment provided. Physicians must consider this litigation checklist when presenting a defense to a liability claim.

Insurers:

When investigating a claim of misdiagnosis of cancer or failure to diagnose cancer, the insurer should carefully evaluate the actions of the health provider. The insurer should look for the following “red flags” and consider how they impact the insurance coverage and the liability for payouts.

Employers:

The following should be considered when determining if the employee’s injury caused by a failure to diagnose cancer, or a late diagnosis of cancer, is not “work related” and did not occur “in the course of the employment,” and therefore is not compensable.

Expert Analysis

What Cancer Issues Are the CDC, FDA, and NIH Experts Addressing?

Federal Agency Cancer Initiatives

What Are Cancer Experts Doing to Find New Treatments and Cures?

Experts on Cancer Advances

What Should Be Included in a Motion to Dismiss a Cancer Misdiagnosis Claim?

Model Motion to Dismiss

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

Reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the cancer misdiagnosis action to trial.


Reasons to Go to Trial

Reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded recently in cancer misdiagnosis cases?



Medical Examples

Medical: Cancer Terminology, Symptoms, Diagnosis and Treatment, Prognosis

Detailed medical information on cancer disease, terminology, symptoms, diagnosis and treatment with discussion of the prognosis and ability to work of a person with cancer.



Law and Medicine Resources

References

A listing of law and medical references for further information on misdiagnosis of cancer.


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Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

Table of Contents
Introduction

Expert Analysis
   Federal Agency Cancer Initiatives
   Experts on Cancer Advances
   Model Motion to Dismiss

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Medical: Cancer Terminology, Symptoms, Diagnosis and Treatment, Prognosis

References