A cancer diagnosis can be devastating. In Canada, 2 in 5 Canadians are expected to be diagnosed with cancer in their lifetime, and approximately 1 in 4 Canadians is expected to die of cancer. In many cases, timing makes a significant difference with respect to cancer outcomes.
Say, for example, a radiologist fails to spot an abnormality on an x-ray that later turns out to be cancer. This delay in diagnosis could deprive the patient of key treatment opportunities that could lead to a good outcome or even a full recovery. While some cancers are more amenable to early intervention and treatment such as prostate cancer and colon cancer, others such as ovarian cancer and pancreatic cancer have been shown to have a higher resistance to treatment such as chemotherapy.
What Counts as Failure to Diagnose Cancer
Failure to diagnose cancer can occur either by a delay in the diagnosis of cancer itself or a delay as a result of a misdiagnosis. As for the cancer diagnosis itself, things such as radiological or pathological error can result in a missed cancer diagnosis. For example, as noted above, if a radiologist fails to spot an abnormality on the lung in a chest x-ray that later turns out to be lung cancer, this could give rise to a medical malpractice claim. This was the case in Levy v Rubenstein, where the plaintiff was being followed for recurrence of kidney cancer and the development of other cancers. Three sets of chest x-rays were ordered and it was determined that the radiologists who interpreted the x-rays failed to detect the presence of a tumor on each.
Cancers can often present with symptoms that are similar to other common conditions, which may cause a physician to render a misdiagnosis. For example, a patient presenting with abdominal pain and bloody stool might be diagnosed with irritable bowel syndrome when they are actually suffering from colon cancer. As with all medical malpractice cases, proving medical negligence requires the plaintiff to prove that there was a breach in the standard of care, and that the breach caused the plaintiff’s injuries.
In cancer cases, it is not enough for plaintiffs to prove simply that the physician failed to detect the cancer, rather they must show that the physician failed to act as a reasonably prudent and diligent fellow professional in the same circumstances, at the same time, would have. This requires expert physicians to testify and give evidence as to the standard of care. In Levy, the Court noted that although all the expert radiologists who testified agreed that the tumor was present and visible on all three x-rays, that in itself was not enough to establish a breach. Ultimately, a breach was found based on the expert evidence, however this underscores the fact that the standard of care is not a standard of perfection and mistakes can happen that do not amount to negligence – a failure to detect, in itself, may not be presumed to be negligent, but this will depend on the individual facts of a case.
As for causation, even if a breach in the standard of care is found, a plaintiff will not be successful if they cannot prove that the breach was causative of their injuries. In a cancer case, this means that plaintiffs must prove that they would have had a better outcome had the cancer been diagnosed earlier. This can be a very difficult hurdle for plaintiffs to overcome, especially in the cases of more aggressive cancers or those that do not commonly respond to treatment as well.
Another complexity arises when considering the aspect of delay in healthcare especially in light of the backlogs caused by the pandemic. For many cancer diagnoses, time is of the essence and causation can be complicated by delays with respect to factors such as imaging and testing. Of course, a physician that fails to follow up in a reasonable time on a test ordered or fails to order further testing at all could well be found to have caused or contributed to a worse outcome. However, causation gets much harder to prove when there is a delay involved due to inability to get a scan or imaging completed.
How much to Expect for a Failure to Diagnose Cancer Claim
The amount that plaintiffs can recover for delayed cancer diagnosis cases varies greatly with respect to factors such as how long the delay was, the type of cancer, and the plaintiff’s outcome. Unfortunately, the very sad reality is that in many delayed cancer diagnosis cases the delay results in the cancer being untreatable leading to the plaintiff’s death. In such cases, damages awards can still be given for pain and suffering as well as for family members’ loss of care, guidance, and companionship under the Family Law Act.
For example, in the recent case of Estate of Mary Fleury et al v Olayiwola A. Kassim, the plaintiff unfortunately passed away after a delayed appendiceal cancer diagnosis. The estate of Mary Fleury was awarded $120,000 for the psychological and physical pain and suffering of Mary as a result of the delayed diagnosis to the time of her death. Further, the Family Law Act plaintiffs in the case, Mary’s spouse and two grandchildren, were awarded $100,000, $50,000, and $65,000 respectively. The Court also awarded the Family Law Act plaintiffs a total of $1,053,183 collectively for past and future loss of income, and care costs as a result of the delayed cancer diagnosis.
Conclusion
Finding out that you or your family member have been the victim of a delayed cancer diagnosis can be extremely difficult. However, advancing a medical malpractice case should not be when you are represented by highly competent, experienced and strong legal counsel. Given the complexity of delayed cancer diagnosis cases, it is important to contact an experienced medical malpractice lawyer to help properly assess your case and to assist you through the complex process. If you have suffered a potential claim for a delay in the diagnosis of cancer, please contact the lawyers of Bogoroch & Associates LLP for a free consultation.
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