More medical malpractice lawsuits are filed because of misdiagnosis or delayed diagnosis than any other form of doctor negligence. According to a study conducted at Johns Hopkins, misdiagnosis claims also account for the lion’s share of malpractice settlements and court awards.
Between 1986 and 2010, 35.2% of all the medical malpractice payouts in America resulted from a doctor’s misdiagnosis. Those successful claims amounted to $38.8 billion, or $1.6 billion every year, for patients who were forced to suffer through futile treatments and often debilitating emotional anguish.
Failure To Diagnose Cancer: Can I Sue My Doctor?
That should give any misdiagnosed patient hope that justice is possible. But not every wrong diagnosis will lead to a viable medical negligence lawsuit, especially when a condition as complicated and difficult to treat as cancer is involved.
Here are the two conditions that need to be met for a successful malpractice case.
1. Your Doctor Violated The Standard Of Care
Like members of any profession, doctors, pathologists and diagnostic technicians are held to a professional standard. The biggest questions that have to be answered in any medical negligence claim are:
- What was the standard of care for your doctor?
- What actions did your doctor take or fail to take?
- Did those actions or inactions violate their standard of care?
To answer these questions, both Plaintiff and Defendant will rely on the testimony of experts. Most likely, other doctors and technicians will testify in court and clearly define what is reasonably expected of a medical professional.
This is all meant to analyze your own misdiagnosis, describe the standard of care and ultimately tackle one big issue: what would a reasonable doctor have done under the same circumstances?
Cancer is complicated. It may be perfectly reasonable for a benign tumor to be mistaken for a malignancy, or vice versa. Some cancers present “nonspecific” symptoms at first, signs that can be confused with other conditions. That confusion may have been unavoidable. Or it may have been perfectly avoidable, and an instance of malpractice. Defining a standard of care allows us to separate the reasonable mistakes from the unreasonable.
2. Your Doctor’s Violation Led To Avoidable Harm
The second essential consideration is whether or not a physician’s negligence caused you actual harm that could have been avoided.
Potential types of harm to consider include:
- a shortened life expectancy
- emotional trauma that results from living under the “threat” of a fatal disease
- exorbitant medical expenses for ineffective therapies
- the pain of undergoing inappropriate treatments, including surgeries
- being forced to undergo aggressive treatments for a late-stage disease that could have been caught earlier
- scarring and disfigurement as a result of unnecessary surgical procedures
But note that proving these forms of damage were avoidable can be difficult in a cancer misdiagnosis lawsuit. Since many types of cancer have tragically low survival rates, the statistical likelihood of a patient dying without proper treatment is very similar to the risks given adequate treatment. That means “avoidable” becomes harder to prove, since in the vast majority of cases, real harm would have occurred regardless of a doctor’s decisions or indecisions.
In Pennsylvania, you have two years to file a negligence claim against a medical professional. That time period is called a “statute of limitations,” but it doesn’t necessarily start from a doctor’s mistake. The clock starts running the moment you discovered, or reasonably should have discovered, the harm done.
Pennsylvania state law has an additional rule that says you have a max of seven years after an instance of medical negligence (the moment your doctor acted negligently) to file a malpractice claim.
How Much Can I Win In A Cancer Misdiagnosis Lawsuit?
Damages, the types of compensation you can recover in a negligence claim, come in many forms. Almost all of them will be tied to the specific types of harm you suffered.
- Compensatory damages : these are things that can actually be quantified, like medical expenses and lost wages.
- Non-economic damages : these kinds of harm are much harder to put into numbers, but no less important. Courts use various formulas to arrive at financial amounts to compensate victims for “intangibles” like pain, suffering and grief.
- Punitive damages : these damages are intended to punish medical professionals who have acted exceptionally recklessly, or intended to harm their patients. In the event that intention to harm can’t be demonstrated, Pennsylvania caps punitive damages at twice the amount of compensatory damages awarded. One-fourth of the punitive damages go into the Mcare Fund, a fund administered by the state treasury. Mcare helps support patients who have made medical liability claims that exceed a doctor’s malpractice insurance.
How Much Does Filing A Lawsuit Cost?
At Marciano & MacAvoy, we understand that every cancer misdiagnosis is a burden, emotionally, physically and financially. That’s why our medical negligence lawyers offer their services on a contingency-fee basis: you pay us nothing until we win a settlement of court award in your case. That way, your success is our success.
Learning more about your case eligibility comes at no cost. We provide free legal consultations, so don’t hesitate to call or fill out our online contact form.