Failure to Diagnose Cancer Claims Face Hurdles, Especially in New York

People who are diagnosed with cancer bring lawsuits for medical malpractice and negligence just as patients with other types of medical injury do. Failure to diagnose claims are brought by people who eventually are diagnosed with a disease, including cancer.

Failure to diagnose claims face all of the same hurdles as any other medical malpractice claim, including issues of physician judgment, reasonableness of awards, and limitations barring an action.

For example, a physician’s exercise of medical judgment may be at issue. In Fergen v. Sestero, 182 Wash.2d 794, 2015 WL 1086516 (Wash., March 12, 2015) a doctor diagnosed a lump on a man’s ankle as a ganglion cyst, a fluid-filled cyst that is considered to be benign, when it was actually Ewing’s sarcoma, a rare and aggressive form of metastatic cancer. At trial, the doctor argued that his diagnosis of a benign cyst inherently involved the exercise of clinical judgment since selection of one diagnosis necessarily entails the rejection of other possible, less likely, diagnoses. The trial court instructed the jury that “[a] physician is not liable for selecting one of two or more alternative diagnoses, if, in arriving at a diagnosis a physician exercised reasonable care and skill within the standard of care the physician was obligated to follow.” The jury found for the doctor. The Supreme Court of Washington affirmed. The court held that Washington law supported the use of an exercise of judgment instruction in appropriate medical malpractice cases, and that an exercise of judgment instruction should only be given when the doctor chose between reasonable, medically acceptable options.

Even if a plaintiff wins a failure to diagnose verdict, courts have reduced damage awards, particularly if an award is excessive or is not reasonable. For example, in Reid v. Bharucha, 126 A.D.3d 495, 2015 WL 1058413, 2015 N.Y. Slip Op. 01991 (N.Y.A.D. 1 Dept., March 12, 2015) a woman was treated for swollen lymph nodes in her neck. Later, she was diagnosed with lymphoma. After a trial, the jury returned a verdict for the husband finding that the hospital’s employees were negligent in not diagnosing the woman’s lymphoma and that this negligence was a substantial factor in causing the woman’s injury and death. The jury awarded $2,400,000 for pain and suffering for one year of additional cancer treatment. The Appellate Division of the New York Supreme Court, First Department, affirmed the verdict but modified the award for pain and suffering. The court held that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence. However, the court reduced the award of $2,400,000 for pain and suffering for one year of additional cancer treatment because it deviated materially from reasonable compensation.

The limitations period may result in an egregious failure to diagnose claim being time-barred. The New York Daily News exposed the story of a woman, Lavern Wilkinson, who died after a physician failed to diagnose her cancer. See: Heidi Evans, Pittance for Her Pain: Brooklyn Mom Receives $625K Settlement after Doctors Failed to Detect her Cancer, but Attorneys Speculate She Could Have Gotten $10 Million or More in Another State, New York Daily News (February 27, 2013). Ms. Wilkinson went to the emergency room because she was having trouble breathing. The ER doctor ordered a chest x-ray and told Ms. Wilkinson that the test results were normal, and discharged her.

Twenty-seven months later, Ms. Wilkinson returned to the hospital with trouble breathing. Another doctor discovered the prior x-ray. The doctor told Ms. Wilkinson that she now had stage 4 lung cancer in both lungs, which had metastasized to three other organs. The doctor also told Ms. Wilkinson that she probably could have been cured if the ER doctor had followed up on the prior x-ray as the radiologist who read the x-ray had suggested at the time.

Ms. Wilkinson’s experience presents a classic example of a failure to diagnose claim. However, New York has a different statute of limitations that applies to suits filed against public hospitals. This statute of limitations runs fifteen months from the medical malpractice, not the date the patient could reasonably have discovered the medical malpractice. So Ms. Wilkinson’s claim was time-barred.

On June 10, 2015, the New York State Assembly passed Lavern’s Law, A285, which amends the statute of limitations that applies to suits filed against public hospitals. See: Kenneth Lovett, State Assembly Approves Lavern’s Law to Help Medical Malpractice Victims; Senate Must Now Act on Bill, New York Daily News (June 10, 2015). The proposed amendment states that the accrual of an action occurs at the later of either (A) when one knows or reasonably should have known of the alleged negligent act or omission and knows or reasonably should have known that such negligent act or omission has caused an injury; or (B) within two years and six months of the last treatment where there is continuous treatment for the same illness, injury, or condition which gave rise to the accrual of an action. The amendment also requires that these actions commence no later than ten years from the alleged negligence act or omission.

Now, the pressure is on the New York State Senate to pass Lavern’s Law. Thirty-four out of sixty-three senators have signed on as sponsors. Governor Andrew Cuomo said he would sign the bill. New York Senate Majority Leader John Flanagan (R-Suffolk County) has not sent the bill to the senate floor for an up or down vote. However, the legislative session ends June 26. See: Heidi Evans, Senate Majority Leader John Flanagan Urged to Bring Medical Malpractice Bill Called Lavern’s Law to Floor for Vote, New York Daily News (June 22, 2015).

This bill is about more than civil procedure. It addresses unequal access to the courts for black and poor victims of medical malpractice. As a recent CDC report showed, black people have a higher incidence rate of cancer than whites. Additionally, five-year relative survival after any cancer diagnosis was lower for blacks (60 percent) than for whites (65 percent). The statute of limitations this bill would modify only applies to public hospitals, which generally serve poorer populations.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details, see the Scalpel Weekly News, March 23, 2015.

To Sign Up for the FREE Scalpel Weekly News giving you the latest FDA, CDC, and DOJ alerts, warnings, and announcements, and curated medical litigation cases, CLICK HERE.

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

See also Medical Law Perspectives, November 2014 Report: More Than Skin Deep: Skin Cancer Misdiagnosis and Other Liability Issues


The content of this blog is provided for informational purposes only, and does not constitute legal advice.
This entry was posted in courts, law and medicine, law practice, litigation and tagged , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>