Doctor Looking Down
15 July 2016

Delayed Colon Cancer Diagnosis: When Is It Malpractice?

When doctors make mistakes, it’s not always medical malpractice. The law doesn’t hold physicians accountable for every error. Medicine, after all, is an imperfect science, especially when it comes to accurately diagnosing colon cancer. That can be true even when a doctor’s mistake causes demonstrable harm.

Medical Malpractice & Delayed Diagnosis

We can’t expect perfection from humans. But we can expect a reasonable level of care. Above all else, physicians are highly-trained professionals, as are diagnostic technicians, pathologists and nurses. When we go to the doctor, we expect to be treated by skillful and competent professionals, not amateurs or professionals who make amateurish mistakes. The law thinks we should be able to expect that kind of care. More than that, the law allows us to demand that kind of care.

Doctor

Every viable medical malpractice lawsuit is based on three fundamental claims:

  1. a doctor-patient relationship existed
  2. the doctor was negligent in some way
  3. the doctor’s negligence caused actual injury to the patient

Negligence is a fairly simple legal concept, and it’s at the base of almost every personal injury lawsuit. One party owed a duty of care to another party, but failed to uphold that duty. In a medical context, doctors owe their patients a duty to make reasonable, skillful and competent decisions. That doesn’t necessarily mean the right decision. Again, reasonable doctors will make mistakes, regardless of their skill level, and it’s not always malpractice.

Finding Errors In A Diagnosis

The real trick in pursuing a medical malpractice case over an incorrect or delayed diagnosis of colon cancer is determining whether or not a physician acted competently. For diagnostic decisions, that usually entails analyzing the doctor’s decision-making process. In contemporary healthcare settings, physicians use a method called “differential diagnosis” to reach the most probable diagnosis for a patient and determine potential treatment options.

How Differential Diagnosis Works

After reviewing a patient’s medical history, lab tests, self-reported symptoms and clinical signs, the doctor will come up with a list of possible diagnoses – usually ranked in terms of probability. The basic question? Which diagnosis explains these lab results, symptoms and signs most completely?

Once the list has been drafted, physicians work down the roster, checking their theories against new diagnostic results and emergent symptoms. In theory, some of the possible diagnoses will be ruled out during this process, because they’re inconsistent with all of this additional patient information. New diagnoses may need to be added to the list in light of more recent findings. Eventually, all of the possible diagnoses will be ruled out – but one.

Violating The Standard Of Care

Most misdiagnosis lawsuits begin here, by analyzing a doctor’s differential diagnosis. Of course, medicine in the real world isn’t as simple as the process we’ve outlined above, and the law doesn’t hold doctors to an ideal standard. Instead, the law holds doctors to a reasonable standard of care – what would a doctor with similar expertise have done under similar circumstances? The task of any reputable delayed diagnosis lawyer is to prove that a doctor with similar expertise would not have misdiagnosed or failed to diagnose a patient under similar circumstances.

In practical terms, this determination usually comes down to one of two things:

  • a physician failed to include the correct diagnosis in their differential diagnosis, but a reasonably competent doctor under similar circumstances would have
  • a doctor included the correct diagnosis in their differential diagnosis, but failed to order the right tests or reach out to a specialist to investigate that diagnosis appropriately

Changing Standards, Changing Duties

Our understanding of medical conditions is always changing. Diagnostic methods can, and should, change accordingly. That means the standard of care in 1950 isn’t the same as the standard of care in 2016.

For example, it was once “common knowledge” that colon cancers only strike in older patients. Today, we know that this understanding of the issue is false. Young patients can develop colorectal cancers, and the incidence rate is rising dramatically – for largely unknown reasons. That means it’s becoming more and more likely that colon cancer should be included in a doctor’s differential diagnosis when they’re presented with a young patient who shows all the signs of the disease.

Delayed Colon Cancer Diagnosis Lawsuit Infographic
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Colon Cancer Misdiagnosis In The Real World

That’s enough theory. What does medical malpractice look like in the real world? To answer that question, we’ll focus on three recent cases of delayed colon cancer diagnosis, two of which resulted in big monetary awards for patients.

Blatant Diagnostic Errors

Some cases of medical misdiagnosis are fairly straight-forward. Take the recent $2 million jury verdict in favor of patient Amanda Williamson, who was misdiagnosed with cancer after a lab technician mixed up her biopsy materials with those taken from another patient.

Smith sued Trinity Medical Center, a hospital in Birmingham, Alabama, following more than a year of unnecessary chemotherapy. A routine PET scan had shown that, instead of harboring a cancerous tumor, her colon was completely clear of malignancy. She sustained permanent injuries to her colon from radiation treatments. After four days of trial, the jury needed only 1 hour and 40 minutes of deliberation to decide that Trinity had, indeed, made a serious error in Williamson’s diagnosis.

Mixing up patients’ biopsies slides certainly falls below the reasonable standard of care that we can expect a medical professional to meet. Really, it’s just simple human error, but when life-altering decisions are based on the results of a biopsy, we can expect more than simple human discretion.

“Too Young” For Colon Cancer

Mark Browne was told he was “too young” to have colon cancer, despite experiencing stomach pains and passing bloody stool at the age of 40. Browne was insistent, though, so his physician, Dr. Nicholas Smith, performed an internal examination – missing a 3 centimeter colorectal tumor in the process. Browne was sent home with a diagnosis of piles, a case of inflamed hemorrhoids. One year later, doctors discovered Browne’s tumor, which had grown to 6 centimeters. By the age of 44, Browne was dead, leaving a wife and three children behind.

His widow filed suit against Dr. Smith, reaching an undisclosed settlement two years after her late-husband’s death. But crucially, Browne’s doctor admitted to “care failures,” according to the Daily Mail. That sounds like an open-shut case of malpractice.

Missed Symptoms

Other cases are far more complex.

Anna Flood began suffering from strange symptoms, like fatigue and weight loss, just after the UK resident turned 22. In an interview with the Huffington Post, Flood admits she “didn’t take [her] symptoms seriously,” but she went for a check-up anyway. Her doctor, it seems, didn’t take Flood’s complaints of gastrointestinal distress very seriously, either. When her symptoms didn’t go away, she returned to her doctor, only to receive the same messages of reassurance. It took Flood two years, and numerous doctor’s visits, before she was finally diagnosed with colon cancer. What made the difference? She was referred to a specialist:

“they did lots of tests, did it all really quickly, operated quickly. Whereas when I went to the GP feeling really, really ill, I felt, not fobbed, but as though they weren’t really taking me seriously.”

Late, or delayed, colon cancer diagnoses like that are terrifyingly common – especially where young people are concerned. In a recent survey of colon cancer patients under 50, Bowel Cancer UK discovered that 1 out of every 5 had seen their general practitioners five times or more before being referred to a specialist. But are these cases of medical malpractice?

Genetics Complicate The Picture

Flood, like many young colon cancer patients, had no idea that her father had passed on a genetic mutation, known as Lynch syndrome, which can drastically increase the risk for colorectal cancers. But should Flood’s doctor have offered her a genetic test to check for the mutation? Did the physician ignore, or fail to properly evaluate, Flood’s symptoms, which a reasonable physician would have suspected as a case of colon cancer?

These kinds of questions, which would be at the core of a colon cancer misdiagnosis lawsuit, are difficult to answer. In all likelihood, however, they could be the basis for a viable suit.

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