Medical malpractice is the branch of the law overseeing what the patient can do when physicians make errors.

There are two elements in a medical malpractice claim: reasonableness of the mistake and degree of harm. If the mistake was reasonable, if an average physician might have made the same error when faced with similar circumstances, there may not be malpractice.

A physician may fail to detect cancer at very early stages. In this circumstance, the mistake may be reasonable, not grossly obvious. A physician has a legal obligation to use all of the standard preventative methods of their profession to predict cancer’s existence.

The physician’s failure to detect cancer usually results in significant damage, such as death. And often, preventative measures and tests are easily performed. So, there is often no reason for a physician not to order testing procedures when there is even a tiny likelihood of cancer.

Failure to diagnose is a specific form of medical malpractice. A physician fails to take the proper steps to determine the nature of the patient’s medical issue. The doctor completely fails to diagnose or detect an existing condition correctly.

Medical malpractice is defined as the negligence of a healthcare professional, leading to the injury of a patient to whom they owe a duty of care. This could include physicians, nurses, and psychologists, to name a few.

Examples of Failing to Detect Cancer

Wrongly diagnosing a patient or medical misdiagnosis is included in the definition of failure to diagnose. Medical misdiagnosis commonly refers to a doctor’s failure or delay in properly diagnosing a patient.

This could be actionable by law in medical negligence cancer cases if the misdiagnosis resulted in injury to the patient or an extreme progression of the cancer in question. Medical experts are held to a higher standard of care than other professions. Because of this, any departure could result in them being held liable for medical malpractice.

Some examples of failure to detect cancer in medical negligence cancer cases could include misreading a biopsy, misdiagnosing the type of cancer or its severity, or missing the cancer altogether. In some cases, proper tests are ordered, but there is negligence by a pathologist or radiologist who interpreted the test. You could recover damages if a doctor misdiagnosed or failed to diagnose cancer in you or a loved one.

What If the Failure to Detect Was Intentional?

There are many horror stories about hospitals or physicians that overlook dying patients because it would be too costly to treat them. Emotional distress and wrongful death lawsuits are the best claims in these rare cases. Although intentional torts have one less element than negligence, it can be more challenging to demonstrate that the hospital or physician deliberately failed to diagnose cancer or knew they could have diagnosed cancer.

Intentional torts can be more challenging to establish because proving intention means demonstrating what a person knew, could have known, or proving that person’s motive. Evidence regarding what is going on inside another individual’s head is almost always circumstantial evidence, which is not very powerful evidence (the one exception being an outright confession). In contrast, proving that a physician was negligent only requires knowing what a reasonable physician would do, which can be done by calling other doctors and asking for their views.

A wrongful death action is a claim brought by a family member of a deceased victim against the individual who caused their death. While the laws of each state vary regarding which persons can bring the lawsuit, it is usually an immediate family member (e.g., a spouse or parent) of the deceased who files the claim.

A wrongful death lawsuit can also be brought against businesses, government agencies, or other organizations, not just individual defendants.

Since wrongful death actions are civil issues, the standard of proof for these claims is lower than in criminal cases. In other words, it is much easier to win a wrongful death lawsuit than it is to get a conviction in a criminal case.

Wrongful death and criminal prosecutions, however, are not mutually exclusive actions. An individual may be sued for wrongful death in a civil law court and may be prosecuted in a criminal law court. A civil suit is usually filed after the criminal matter concludes if both situations happen.

In a wrongful death lawsuit, the survivors bring a claim on behalf of the victim that states that the victim’s death resulted from the defendant’s conduct.

To prevail on a claim for wrongful death, the survivors must show the following elements exist:

  • That the defendant caused the victim’s death;
  • That the defendant intentionally, recklessly, or negligently caused the victim’s death, or that the defendant was strictly liable for the victim’s death;
  • Either beneficiaries or dependents survive the victim; and
  • The victim’s death has affected any surviving beneficiaries or dependents in such a way as to cause economic damages to them.

The immediate family members of the individual who died (i.e., the “decedent”) are allowed to sue for wrongful death. Although it hinges on the laws of a state, this generally only includes spouses, kids, and parents of the deceased victim.

In general, the following individuals are those who usually bring wrongful death lawsuits:

  • Surviving spouses;
  • Kids of the decedent;
  • Dependent parents (i.e., the parent who lived with the deceased and relied upon the decedent for most or all economic support);
  • Personal representatives or designated heirs;
  • Domestic partners (note that the domestic partnership must be registered with the state where the partners live and now extends to all types of couples, not just same-sex couples);
  • Putative spouses (i.e., a surviving spouse whose marriage to the deceased was not proper, but a court could find that the spouse had a good faith belief that their marriage was, in fact, proper); and
  • Minors (aside from their biological or adoptive children) who lived with the deceased and depended on them for financial support.

Family members that sue an individual based on wrongful death can typically recover damages for the following:

  • Medical costs and expenses for funeral arrangements;
  • Loss of earnings;
  • Loss of inheritance due to the untimely death of the decedent;
  • Loss of benefits;
  • Loss of care, safety, and friendship to survivors;
  • Pain and suffering caused to the survivors; and
  • Less common, punitive damages where the defendant’s conduct was intentional, malicious, or egregious.

It can be tough to specify how much the decedent would have earned if they had not died. Each state has adopted its own unique life expectancy table to simplify this procedure.

Tables have been designed to determine:

  • How long the victim would have lived if not for the incident;
  • How many more years the victim would have continued to work; and
  • How long the victim would have survived during their retirement (if applicable).

The life expectancy table, coupled with the victim’s earnings at their death, allows a court or jury to estimate the victim’s loss of earnings and potential retirement benefits.

Negligence is defined as a medical professional’s lack of proper attention and care when treating a patient. This means that the medical professional had access to sufficient information and resources to make a cancer diagnosis but failed to do so. No physician is foolproof, and some can be negligent or even reckless. If your physician missed or misdiagnosed your cancer, you may be entitled to damages.

What If the Cancer Will Inevitably Cause Death?

In medical malpractice, it is not uncommon for a physician’s negligence to not directly contribute to a patient’s illness or injury. In too many cancer cases, the patient’s condition is incurable regardless of the period of discovery. The negligent physician merely allowed the disease to grow unchecked.

For instance, a patient with cancer might only be extending their amount of time by getting treatment. If a physician is negligent in catching the cancerous cells, the patient will lose time to live, but the patient’s destiny will be the same regardless of the physician’s conduct. In those cases, can the law hold the doctor responsible?

The answer is yes. Although the cancer is incurable and the physician could not heal the patient regardless of the time of discovery, the physician did lessen the amount of time the patient has left. The patient could still successfully sue the physician for lost time.

Do You Need an Attorney Experienced with Medical Malpractice?

Suppose you or a loved one had a doctor who failed to detect cancer early. In that case, 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.