How canyou prove that a delay in the diagnosis of cancer diminished my chances of survival?
Your expert does not need to quantify the diminution in your chances of survival, i.e., the delay in diagnosis of cancer reduced the patient's chance of survival by 15%. Under New York law, the plaintiff's medical expert need only testify that the patient's chance of survival were diminished by the delay in diagnosis.
How do I prove that the delay in diagnosing cancer diminished the patient's chance of survival? Let's start with an example of a case involving the failure to timely diagnose and treat lung cancer. When first diagnosed with lung cancer, the patient's lung cancer has metastasized to his brain and liver, which means that the patient has Stage Four lung cancer. A patient with stage four lung cancer has virtually no chance of long-term survival and the statistical odds that the patient will be alive five years from the date of diagnosis are less than two percent (this is known as the five year survival rate).
Four months before the diagnosis, the patient had a CAT scan of his chest that showed a tiny two centimeter nodule in a lobe of his left lung. The tiny tumor had not spread to the mediastinum (area of the chest between the lungs). Given the minor size of the tumor and the lack of any evidence that the tumor had spread outside its original location, the patient is classified as having Stage One lung cancer. Stage One lung cancer has a five year survival rate of roughly 80%.
When you compare the five year survival rates for Stage One lung cancer (80%) to Stage Four lung cancer (less than 2%), your medical expert can quantify the "loss of chance" for a cure of roughly 78% caused by the four month delay in diagnosis. This is more than sufficient to meet your burden of proof in a delay of diagnosis case.
In every case involving a delay of diagnosis of cancer, the ultimate questions are twofold: #1: What was the stage of the cancer at the time of the original diagnosis? #2: What was the stage of the cancer when it is alleged that the cancer should have been diagnosed? Once you have answers to those questions, you can determine the impact of the delay in diagnosis upon the patient's five year survival rate.
Is it it enough for your medical expert to simply testify that the delay in diagnosis diminished the patient's likelihood of survival? Yes, but it's better to quantify with statistics how the delay has impacted the patient's five year survival rate.