Medical Malpractice: Failure to Detect Cancer
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What is Medical Malpractice?
Medical malpractice is the branch of the law governing what the patient can do when doctors make mistakes. There are two factors in a medical malpractice claim: reasonableness of the mistake and degree of harm. If the error was reasonable, that is, if an average doctor might have made the same exact mistake when faced with similar circumstances, then there may not be malpractice.
For example, a doctor may fail to detect cancer at very early stages. In this case, the mistake may be reasonable, not a grossly obvious one. A doctor has a legal duty to use all of the standard preventative methods of her profession in order to predict the existence of cancer.
The doctor's failure to detect cancer usually results in major damage, such as death. And often the preventative measures and tests are easily performed. So, there is often no excuse for a doctor not to order testing procedures when there is even a small likelihood of cancer.
Examples of Failing to Detect Cancer
When a patient complains of lumps in her breast, she must be subjected to a mammogram, ultrasound, or other imaging test to detect breast cancer. A biopsy may be required if cancer is likely.
With skin cancer, the medical lab is responsible for notifying the doctor that a biopsy of a mole was precancerous. The doctor is also responsible for follow-up care for skin cancer. A lack of follow-up care can lead to infection at the spot where the cancer was excised, burst blood vessels, and recurrent cancer.
A doctor is responsible for scheduling a colonoscopy for the patient. Colorectal cancer is one of the most preventable forms of cancer if detected early.
What If the Failure to Detect Was Intentional?
There are plenty of horror stories on the internet about hospitals or doctors that ignore dying patients because it would be too expensive to treat them. Emotional distress and wrongful death lawsuits are the best claims in these rare situations. Although intentional torts have one less element than negligence, proving that the hospital or doctor purposefully failed to diagnose cancer or knew that could have diagnosed cancer can actually be more difficult.
Intentional torts can be more difficult to prove because proving intention means proving what a person knew, could have known, and/or proving what that person’s motive is. Evidence regarding what is going on inside another person’s head is almost always circumstantial evidence, which is not very strong evidence (the one exception being an outright confession). In contrast, proving that a doctor was negligent only requires knowing what a reasonable doctor would do, which can be done by calling in other physicians and asking for their opinions.
What If the Cancer Will Inevitably Cause Death?
In medical malpractice, it is not uncommon for a doctor’s negligence to not directly contribute to a patient’s illness or injury. In too many cancer cases, the patient’s illness is incurable regardless of the period of discovery. The negligent doctor merely allowed the illness to grow unhindered. For example, a patient who has cancer might only be extending the amount of time he or she has by getting treatment. If a doctor is negligent in detecting the cancerous cells, the patient will lose time to live, but the patient’s fate will be the same regardless of the doctor’s own conduct. In those situations, can the law hold the doctor responsible?
The answer is yes. Although the cancer is incurable and the doctor could not cure the patient regardless of the time of discovery, the doctor did decrease the amount of time the patient has left. The patient could still successfully sue the doctor for lost time.
Do You Need an Attorney Experienced with Medical Malpractice?
If you or a loved one had a doctor who failed to detect cancer early, you should speak to a personal injury attorney immediately to learn more about the value of your case and what types of recoveries are available.
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Last Modified: 01-09-2013 11:33 AM PST
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