How Do You Prove that a Delay in Diagnosing Cancer Caused Harm?

When there is a delay in the diagnosis of cancer, you must prove that the delay diminished the likelihood of survival.  This is known as the "loss of a chance".  

There are two important questions:

  • What was the 5-year survival rate on the date of the diagnosis? and
  • What was the 5-year survival rate when the diagnosis of cancer should have been made?  

The 5-year survival rate is the percentage of people who live at least 5 years after being diagnosed with cancer.  A 5-year survival rate of 90% means that an estimated 90 out of 100 people who have that cancer are still alive 5 years after being diagnosed.  Survival rates vary with the stage and grade of the cancer.  The tests and scans you have when your cancer is diagnosed will provide information about the stage.

The American Cancer Society publishes survival rates for different types of cancer.  For example, the 5-year survival rate for stage II breast cancer is 93%. stage III breast cancer has a 5-year survival rate of 72%. and metastatic, or stage IV, breast cancer has a 5-year survival rate of 22%. These statistics are provided by the National Cancer Institute's SEER database.

Let's say the patient is diagnosed with stage IV breast cancer that has a 5-year survival rate of about 22%.  Nine months before the diagnosis, the patient had a mammogram that showed a suspicious mass in a breast and further imaging studies and bronchoscopy should have been performed--this is when the deviation from the standard of care occurred.  Upon viewing the imaging films of the chest x-ray, a radiologist can stage the lung cancer at stage I or II, which have a 5-year survival rate between 93% to 72%.  As a result of the delay in diagnosis, the five-year survival rate decreased from either 93% (stage I) or 72% (stage II) to 22% (stage IV), and the patient's likelihood of survival diminished between 50% and 71%.

Under New York law, you are not required to quantify the "loss of a chance".  The courts only require proof that the malpractice deprived the plaintiff of a "substantial possibility" of a better outcome, or proof of some diminution of the plaintiff's chances for survival or a better outcome.  No New York appellate court has identified a minimum percentage of loss of chance sufficient to support a finding that the delay in diagnosis diminished the injured party's likelihood of survival. Abbatantuono v. Boolbol, 115 A.D.3d 892 (2nd Dep't 2014)(not informing the plaintiff that she needed chemotherapy "diminished the injured plaintiff's chance of a better outcome or increased her injury"). Click this link for a summary of the case law.

If you have questions about a delay in the diagnosis of cancer, we will be happy to speak with you. You can call us at 845-802-0047.

 

 

 

John Fisher
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