Legal Representation After a Failure to Diagnose Cancer

Cancer is one of the most frightening medical conditions a person can face. As medical technology has improved over the years, however, the chances of beating a cancer have increased too. The key to fighting cancer is catching it early, which is why proper screening, testing, and diagnosis is vital in treating any kind of cancer. When a medical professional fails to make a diagnosis that he should have, the results can be devastating.

If you or someone you love has suffered a cancer misdiagnosis, including a failure to diagnose, please don't suffer in silence. It is entirely possible that your doctor should have caught it sooner and given you more time to battle this terrible disease. Call Wingate, Russotti, Shapiro & Halperin, LLP, today at (212) 986-7353 to speak with a New York medical malpractice attorney. We can discuss your case, talk about mistakes your doctor may have made, and figure out how to move forward.

Back to Top

How Is Cancer Misdiagnosed?

There are different ways in which a medical professional can mess up when diagnosing something like cancer, including a general misdiagnosis. This means that the doctor runs tests and sees something is wrong, but comes to the wrong conclusion about what it is. For example, a doctor might notice something on an X-ray, but decide it is something other than cancer. Such a misdiagnosis slows down much-needed medical treatment and can result in unnecessary procedures, including surgery.

A misdiagnosis can also occur because a doctor failed to order the tests necessary to catch cancer early, even though he or she should have. This is referred to as a failure to diagnose, which means that a doctor either completely missed the fact that something was wrong, or ignored evidence. This can happen when a doctor does not order the right tests, as well as when he or she overlooks the results. In a situation where another medical professional could have looked at the information and made a diagnosis, this is a serious medical mistake and rises to the level of malpractice.

Negligent and careless actions that can result in a cancer misdiagnosis include:

  • Ignoring patient requests to check moles, bumps, or lumps
  • Ignoring patient complaints about symptoms
  • Not requesting the proper tests, including MRIs, CT Scans, and biopsies
  • Ordering the wrong tests
  • Failing to properly administer tests
  • Mixing up patient files or test results
  • Tissue samples becoming contaminated
  • Misreading or reviewing test results

These actions can occur by the hands of a doctor, radiologist, intern, medical technician, or even an administrator. But there is no excuse for these actions, as failing to properly diagnose cancer or diagnose it in time can drastically change a patient’s treatment plan.

While just about any form of cancer can be misdiagnosed, some of the most common types include:

Back to Top

Is a Misdiagnosis Medical Malpractice?

Answering that question depends on the details of a particular incident, but misdiagnosis is often considered malpractice. For malpractice to occur, there must be negligence and damage caused by that negligence. That means that the actions taken by this doctor run contrary to what another, reasonable doctor would have done in the same situation.

For example, if a doctor fails to order a particular test, even though it is common practice for that test to be run in a given situation, that could be considered negligence. To prove it, you must have another doctor testify that he would have given the test or caught something that the negligent doctor missed on the results. Then, you have to connect the act of medical negligence directly to harm that has occurred to hold the doctor financially liable for injuries, medical expenses, and other damages. This is why you need an experienced New York cancer diagnosis attorney by your side.

Back to Top

Proving Medical Malpractice

An important part of any malpractice claim is an in-depth medical review. With regard to cancer, this includes speaking to another oncologist about your cancer diagnosis and what tests, if any, your original doctor requested in your case. At Wingate, Russotti, Shapiro & Halperin, LLP, we have worked with numerous doctors regarding misdiagnoses and can get you in contact with an experienced oncologist to review your medical records. If your new doctor determines that your original doctor or hospital committed negligence and misdiagnosed your cancer, you may be eligible to file a claim.

Once a medical expert determines that malpractice has occurred, we can begin to review the hospital’s records to determine who is liable for your injuries. While you may assume this was your doctor, it could also have been the fault of a technician, a nurse, an intern, or an administrator who got your files mixed up, scheduled the wrong tests, or another dangerous mistake. Whoever caused your misdiagnosis, they deserve to be held accountable for their actions, and you deserve proper compensation for your injuries.

Back to Top

How Long Do I Have to File a Claim?

Every injury claim has a deadline, or statute of limitations, on how long a victim has to file a claim. If you miss this deadline, then you lose the right to file a lawsuit against the at-fault party and receive proper compensation. With regards to medical malpractice claims, patients in New York have up to 30 months, or two and a half years, from the date that the misdiagnosis occurred. While this may seem like a long time, you may not discover your cancer was misdiagnosed for months or years into your treatment. In addition, you also have to include time to review your medical records, negotiate with the at-fault party’s insurance company, and prepare for a trial.

However, in 2018, New York State passed a landmark statute known as Lavern’s Law. Under Lavern’s Law, the new start date for a claim is the date of discovery, or the date when you discovered that you were misdiagnosed. This can add on much-needed time for your claim.

Back to Top

Wrongful Death Claims and Survival Actions

Sadly, many misdiagnoses lead to the death of patients, leaving their families heartbroken and possibly in severe financial distress. These patients may never have gotten the opportunity to file a claim against the negligent medical provider. However, New York also recognizes the rights of family members to file claims for the wrongful death of a loved one.

Wrongful death claims follow a different process when compared to injury claims. First, the victim’s estate must be the one to file the claim to recover the financial costs of the death. This can include funeral bills, lost wages if the victim contributed to the family’s household income, and any remaining medical bills from their treatment. In addition, unlike other claims, families typically can only recover compensation for the financial costs of their loved one’s death. With regard to the statute of limitations, families have up to two years from the date of their loved one’s deaths to file a wrongful death claim.

By contrast, there are situations in which a cancer patient can file a claim before their death. This is referred to as a survival action. With a survival action, a cancer patient can file a standard medical malpractice claim to cover the costs of their medical bills, lost wages, and pain and suffering. Even if the patient passes away before the claim is settled, the claim could include all these costs to benefit the victim’s estate and family.

Back to Top

Contact Experienced NY Medical Malpractice Attorneys

Moving forward with a cancer misdiagnosis claim is extremely difficult, if not impossible, on your own. Determining how your cancer was missed can require extensive research and a thorough understanding of both New York law and medical procedures. However, if you work with a New York medical malpractice attorney at Wingate, Russotti, Shapiro & Halperin, LLP, we can aggressively advocate for proper compensation for your misdiagnosis.

With over 50 years of experience, our attorneys can use all of their skill and knowledge to investigate your case and determine who did wrong. Once we uncover the at-fault party, we can build a strong case for compensation and advocate on your behalf during negotiations or a trial. If you or a loved one has been misdiagnosed when it comes to cancer, call Wingate, Russotti, Shapiro & Halperin, LLP, at (212) 986-7353 and tell us what happened. Let us protect your rights and fight for you.

Back to Top

Additional Information