Proving that a Delay in Diagnosis of Cancer Caused Harm

John Fisher
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Stopping Medical Injustice

Cases involving the delayed diagnosis of cancer are typical subjects for the "loss of a chance" doctrine. In such cases, the plaintiff's evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased his injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased his injury. Flaherty v. Fromberg, 46 A.D.3d 743 (2nd Dep't 2007).  The "loss of a chance" rules applies to situations "where the defendant's wrongful act does not cause the condition, injury or illness." New York's Pattern Jury Instruction section 2:150, at pages 846-848 (2011).  

How Long is Enough to Meet New York's Loss of a Chance Rule?

Delays in the diagnosis and treatment of cancer as short as a few weeks can result in a physician being liable for a diminished loss of chance of survival. Hughes v. New York Hospital--Cornell Medical Center, 195 A.D.2d 442, 443-444, 600 N.Y.S.2d 145, 147 (2nd Dep't 1993)(2-week delay); Cavlin v. New York Medical Group, P.C., 286 A.D.2d 469, 470, 730 N.Y.S.2d 337, 338 (2nd Dep't 2001)(13-day delay); Galandauer v. Brookdale Hospital Medical Center, 274 A.D.2d 448, 710 N.Y.S.2d 396 (2nd Dep't 2000)(6-week delay).  Even a short delay in diagnosis and treatment of a medical condition can be actionable under New York law. 

In Stewart v. New York City Hospital Corp., 207 A.Dd.2d 703 (1st Dep't 1994), the jury returned a verdict in favor of the plaintiff for $500k for the plaintiff's loss of "natural" childbearing capacity following an ectopic pregnancy causing the loss of her right fallopian tube.  The Appellate Division, First Department held that the jury was justified in concluding that the loss of a "5 to 10 percent" chance of having a child naturally was "substantial"; see also, Flaherty v. Fromberg, 46 A.D.3d 743 (2nd Dep't 2007)(defendant's conduct diminished the plaintiff's chance of a better outcome or increased his injury).

The plaintiff's expert need not quantify the extent to which a particular act or omission decreased a patient's chances of survival or cure, as long as the jury can infer that it was probable that some diminution in the chance of survival had occurred. Jump v. Facelle, 275 A.D.2d 345, 346, 712 N.Y.S.2d 162, 163 (2nd Dep't 2000)(patient died from complications secondary to an abdominal infection following surgery); Wong v. Tang, 2 A.D.3d 840 (2nd Dep't 2003).  

The Loss of a Chance Rule Applies to Cases Involving the Aggravation of a Medical Condition

The plaintiff may show that the the cancer progressed from one stage to another during the delay in diagnosis. Flowers v. Southampton Hospital, 215 A.D.2d 723, 627 N.Y.S.2d 81 (2nd Dep't 1995)(cancer progressed from stage one to stage two). The plaintiff can show that the delay in diagnosis resulted in more extensive surgery or the loss of an organ. Cannizzo v. Wijeyasekaron, 259 A.D.2d 960, 689 N.Y.S.2d 315 (4th Dep't 1999)(neglience of defendants deprived plaintiff of a substantial possibility of having a functional kidney).

While doctors and hospitals object to the speculative nature of the "loss of a chance" doctrine, the courts have rejected such objections.  The courts have had that: "We can only deal in probabilities since it can never be known with certainty whether a different course of treatment would have avoided the adverse consequences." Brown v. State of New York, 192 A.D.2d 936, 938 (3rd Dep't 1993).