Legal Action Against Delayed Cancer Diagnosis

Why You Can Take Legal Action Against Delayed Cancer Diagnosis

Nearly 1 in 2 Canadians will be diagnosed with cancer, according to the Canadian Cancer Society. Hearing a cancer diagnosis from your doctor can be one of the scariest moments in your life. Despite the stress and pain that the diagnosis itself can bring, the realization that this diagnosis was delayed can add to your concern.

The timing of a cancer diagnosis can make all the difference between detecting cancer at a stage where it is possible to treat it effectively or being too late to do so. With several types of cancer, earlier detection is crucial to its removal or in the prevention of spreading to the rest of the body.

A delayed cancer diagnosis, or misdiagnosis, can lead to serious life-long consequences or death, having a devastating impact on patients and families. This can give rise to a medical malpractice claim. However, medical malpractice victims face an uphill battle that malpractice lawyers and their clients should be prepared for.

The Earlier the Diagnosis, the Better the Results

For many types of cancers, the earlier it is detected and treated, the better. If one is diagnosed early on, the greater the chance for survival. In addition, many cancer treatments are more effective before the disease spreads throughout the body.

Cancers like colon, lung, breast, prostate, cervical, testicle, kidney and non-small cell cancers will respond quite well to early treatment. However, other types such as small cell lung cancer, pancreatic cancer and ovarian cancer have a typically poor chance of recovery regardless of when the cancer is detected.

Given that many types of cancers are treatable, early diagnosis is key in preventing serious, long-term health effects, or even death. Any unreasonable delays in diagnosis can result in unnecessary treatments, costs and a lower survival rate. These can become the foundation for a medical malpractice claim to arise.

Suppose a doctor fails to recognize the symptoms that would lead to a professional to diagnose cancer, or misdiagnosed a patient. In that case, the patient might be deprived of the treatment options that could lead to a full recovery.

How can a delayed diagnosis occur?

Cancer misdiagnosis is one of the most common forms of medical misdiagnosis because of the widely misunderstood nature of cancer. In situations where cancer is misidentified or mistaken for a different disease, patients can miss critical windows for treatment.

For example, you go to your doctor complaining of abdominal pain, bloody stool, cramping and digestive issues. Your doctor then diagnoses the issue to be due to Irritable Bowel Syndrome and gives you medication to control it. However, it turns out that you actually have colorectal cancer.

Some commonly misdiagnosed cancers include:

  • Breast Cancer
  • Colorectal Cancer
  • Pancreatic Cancer
  • Lung Cancer

Actions that can cause the prevention of a proper cancer diagnosis:

  • Failure to consider the patient might be suffering from cancer or failure to properly recognize the patient’s risk factor (family history of cancer)
  • Failure to screen the patient for cancer (e.g. perform a colonoscopy)
  • Failure to recognize the symptoms of cancer
  • Failure to order appropriate tests
  • Failure to diagnose the cancer

Following this carelessness, the patient’s cancer can continue to develop and get to the point where it is no longer easily treatable or not treatable at all (for example, if the cancer reaches stage 4 or metastasized).

Establishing Medical Malpractice in Situations Involving Misdiagnosis or Delayed Diagnosis

A delayed diagnosis lawsuit or medical misdiagnosis claim can be made by patients or the families of patients who are injured or negatively affected by a doctor, nurse, hospital worker or other healthcare professional.

You Are Unable to Sue for “Loss of Chance” in Canada

Keep in mind that medical malpractice claims in Canada face many hurdles and differ from cases brought in the United States. In America, a plaintiff (the person bringing a case against another in a court of law) can attempt to show that delayed diagnosis caused their chances of successful treatment to be reduced by a certain percentage. For example, say they lessened their chances of treatment by 20%, the plaintiff can then sue for 20% of future losses.

This is known as “loss of chance”. As a Canadian, you cannot sue your medical practitioner for “loss of chance” as in the United States.

The Burden of Proof in Cancer Claims

In Canada, a plaintiff must show more than just a possible loss of chance. Plaintiffs must prove on the balance of probabilities that an earlier diagnosis would have changed the patient’s medical outcome of treatment. Meaning they would not have experienced the loss had they been diagnosed earlier.

This can be difficult to prove, but not impossible. There are several ways plaintiffs and their personal injury lawyers can confirm that a missed or delayed diagnosis caused enough injury to warrant damages in a cancer misdiagnosis case.

Proving Causation

During a delayed diagnosis lawsuit, the plaintiff needs to be able to prove causation. This means that certain circumstances need to be established, on the balance of probabilities, by auditing legal and medical issues. The components necessary to prove causation in the case of medical malpractice involving cancer diagnosis include the following:

  • The patient must prove that the cancer was present when the doctor examined the patient.
  • The patient must prove that the standard of care required that the patient should have received a cancer diagnosis earlier.
  • The patient must prove that the outcome of their disease probably (not possibly) would have been more favourable with an earlier diagnosis.

How can a medical malpractice lawyer help you?

Medical malpractice claims are lengthy and difficult processes. Furthermore, patients are often overwhelmed with coping with the impacts of a serious medical error. It can be an extremely emotional time as victims and family members both struggle to manage their new reality.

To learn more about medical negligence, call Sommers Roth & Elmaleh at 1-844-777-7372 or contact us here.

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