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Failure to Diagnose Cancer

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s podcast involves a question raised by a caller who just learned that he tested positive for prostate cancer. He, of course, was surprised. His family doctor would every year have him get a PSA  screening test. When he confronted the family doctor, he was shocked to learn that his PSA scores were highly elevated for several years. Yet his family doctor never told him. He wanted to find out about his legal options.

Unfortunately, we find this kind of situation happening reasonably often. It’s usually not intentional neglect on the part of a family physician. When they ordered the screening PSA tests, their head was in the right place. They just didn’t review the results, or if they examined them, it didn’t register with them that the results were in the range that would suggest cancer. This can happen with other cancers like skin cancer or breast cancer.

Of course, the patient would prefer a cancer be caught quickly, and that’s why they go through the screening procedures. It’s reasonable for them to consult an attorney in such a case.

Imagine being told that you could have been cured had your cancer been diagnosed early, but that now there is no hope. Then imagine that the cancer was capable of being diagnosed early (that the screening tests came back positive for cancer) but that your physician simply dropped the ball.

Of course, you will want to consider the legal option of suing the doctor who failed to do their job.

But here’s where things get tricky. With some very slow progressing cancers, the failure to detect cancer for one or two years may not make a difference. On the other hand, with very aggressive forms of cancer, a one or two year delay can mean that the cancer is likely to win.

So the legal analysis must focus on what’s called a loss of chance. Under the law, if it is very insignificant, the loss of a chance doctrine will make proceeding with a court case very difficult.

A case has a far greater likelihood of being successful at trial, where medical negligence results in a loss of a chance so significant that experts agree leaves the patient’s outcome in grave doubt.

Here is the legal formula that a jury will be instructed to use in such a case:

A physician may be liable to a patient for a loss of chance of survival resulting from the physician’s failure to exercise reasonable care.

To recover damages from the physician, the patient must prove by the greater weight of the evidence that:

(1) the physician’s care and treatment of the patient fell below the appropriate standard of care;

(2) if the physician had met the appropriate standard of care, the patient would have had a chance of survival;

(3)the physician’s failure to meet the appropriate standard of care decreased the patient’s chance of survival; and

(4)the physician’s failure to meet the appropriate standard of care was a substantial factor in causing harm to the patient.

To make this determination, consider the evidence presented about:

(5) the patient’s percentage chance of survival before the physician’s alleged negligent acts or omissions, and

(6)the patient’s percentage chance of survival after the physician’s alleged negligent acts or omissions.

The difference between these percentages is the percentage value of the patient’s loss of chance of survival.

After determining the percentage value of the patient’s loss of chance of survival, determine the value of the total damages based on the evidence presented.

Multiply this dollar amount by the percentage value of the patient’s lost chance of survival.

Let’s simplify all that. Suppose the chance of survival was 90% and is now 80%. The difference is 10%. In such a case, an attorney might advise against pursuing a lawsuit.

On the other hand, if the chance of survival was 90% and is now 20%, the difference is 70%. Pursuing a lawsuit makes much more sense.

Suffice it to say, to evaluate such claims, an attorney would need to see the patient’s medical records, those of all treaters.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”