Evaluating Missed Diagnosis of Cancer Cases
By Howard A. Gutman
New Jersey Law Journal
July 29, 2008
Cancer malpractice claims pose the potential for significant reward as well as risk for the lawyer. Damages in such cases can be substantial, with the spread of disease causing physical and mental harm, lost wages, substantial disability and, sadly, sometimes death. Not surprisingly many substantial verdicts have involved delayed diagnosis claims; particular after an empathetic jury sees the face of a now-deceased plaintiff through a videotaped deposition.
These cases can also entail significant risk. Many prospective cases do not involve malpractice, but simply the consequences of a disease which impacts over one and a half million people each year and is the second leading cause of death in the United States. Doctors who might appear as prospective targets may be able to justify various decisions, or explain why earlier intervention would not have altered the outcome.
Patients may be upset if potential claims are rejected, particularly if this occurs as the statute of limitations is about to end, making it difficult to retain other counsel. Because of this combination of risks and rewards, some knowledge of case assessment is required even in the referral of claims to other counsel.
Statute of Limitations
While the typical personal injury limitations period is usually easy to identify, delayed diagnosis claims can present difficult issues. The limitations period is two years from the date the plaintiff knew or had reason to know of the claim. What one knows or has reason to know are concepts subject to interpretation and debate.
Patient Smith has been treated for chest discomfort for two years when a chest X-ray discloses a probable cancerous nodule on June 2, 2006. A CT scan on June 9 reveals a 6 x 2 x 3 mass, and on June 17 surgical pathology confirms a cancerous squamous cell tumor. When does the statute begin, from initial testing, more reliable subsequent testing, or pathology definitively confirming disease with the problem occasionally compounded by inaccurate dates or recollection?
The legal claim may be presented only after the tumor has metastasized and seriously impacted quality of life. While an attorney may wish to eliminate problems by early filing, that is not always possible. New Jersey requires a certificate of merit for filing and the claim involves a substantial time and monetary commitment. Thus, the attorney needs to determine the relevant time constrains, make a preliminary claim assessment, and determine how to proceed.
Issues for the Referring Attorney
Patients may come first to a family attorney and request a referral. Referral of other personal injury or even malpractice claims pose fewer problems: claims can be referred well in advance of any deadline, most cases are accepted or at least promptly evaluated, and information to assess a claim is available or accessible. In contrast, the cancer case may involve complex facts, difficult medical questions, approaching deadlines, and rejected claims. Let us now look at some factors in case assessment.
Sources of Information
Medical texts like "Devita's Principles and Practice of Oncology" provide basic survival data and a treatment overview, though some familiarity with the particular area of medicine and the patient's condition can be required.
Sometimes a physician or medical review service is available to provide a preliminary opinion. Some professionals can be reluctant to provide preliminary assessments, and the attorney must decide how far to proceed, who will pay, and how quickly the assessment can be done. Raising a client's expectations and paying a thousand dollars for a negative evaluation makes little sense. We are approaching a time of sub-specialties where lawyers familiar with particular types of claim can quickly and accurately assess their merits.
Experts are usually needed to establish both causation and damages. Typically a practitioner in the same area renders an opinion on standard of care, while an oncologist opines on the consequences of delay or damages. New Jersey requires an affidavit of merit with a complaint filing to confirm a breach of the standard of care. As with other malpractice cases, the attorney will want a knowledgeable expert who practices medicine in the specific area, testifies for both sides, and brings with him experience, knowledge, and objectivity.
Many cases are rejected, and searching for multiple experts to support a particular theory can be a dangerous endeavor in terms of time, cost, and raised expectations. Unless there is a compelling reasons to search elsewhere, the attorney should reject a claim the expert cannot support even if the prospective damages are substantial. Taking a claim with substantial damages and questionable liability can expose the practitioner to liability, as such claims rarely settle particularly now that settlements for malpractice are a matter of public record.
After seeing that the particular type of cancer is potentially curable, we look to the patient's particular circumstances. How did the patient lose the opportunity for effective treatment because of delay? First consider the amount of time between the deviation and diagnosis. At least one empirical study correlates the extent of delay with the plaintiff's success. See United States, 129(4) Archives of Surgery 397(1994). While gaps of two to three months did not indicate liability, longer delays did, and a jury can quickly grasp that the longer a tumor is untreated, the more likely it can cause harm.
Stage and Survival
In a typical case, plaintiff alleges Mary Smith was stage 1 when the tumor should have been diagnosed but stage 4 now. Several issues must be examined. First, survival with this particular cancer must be dependent upon stage. While one might intuitively reason that all cancers are divided into stages with survival stage-dependent, that is not the case. There are differing staging systems and varying impacts of delay, with significant differences even within a single organ. The question is not simply whether there was delay but the loss of an effective treatment.
If we have a stage-dependent tumor, we will try to identify the likely stage at the time of deviation. Perhaps the easiest scenario is where a diagnostic test was misinterpreted and stage can be seen through retrospective evaluation of the test. For example, assume a chest X-ray was misinterpreted, review of the X-ray slides shows a 2 centimeter nodule that was missed, and the patient is diagnosed with stage 3 non-small cell lung cancer 20 months after the X-ray. We can reason that given its size and the absence of symptomology for a year and a half the tumor was locally confined and stage 1 when missed.
There is almost always some degree of assumption and reasoning that can be disputed. Defense counsel can argue that when the tumor spread to another location is not known and that cancer can spread through lymph nodes or blood vessels and sometimes not manifest itself for months or even years.
A good understanding of the underlying medicine and an expert who can explain the course of the disease is helpful with the plaintiff frequently having an advantage at trial. Most jurors will instinctively believe that a negligent lack of treatment contributed to a poor outcome and sympathize with a seriously ill plaintiff. Considerable skill is required for a defense counsel to argue that even if the disease was missed and treatment delayed for a prolonged period, that did not impact the ultimate outcome.
Even for experienced lawyers and judges, issues can be close and difficult. In Verdiccio v. Ricca, 179 N.J. 1 (2004), four judges on our Supreme Court sustained a large verdict while the trial judge, Appellate Division and two on the Court saw the proofs as insufficient to even present them to the jury. (2).
Claims of Those Already Seriously Ill
Family members may initially target an uncaring specialist who missed what they see as a critical issue and attribute the patient's demise to that failure. Not infrequently, the specialist saw the patient in the hospital where his cancer was already advanced. If the patient's condition was untreatable, damages should be limited. If he was hospitalized and his cancer terminal with ongoing monitoring in a hospital setting, attempting to blame one specialist involved with this treatment can be unproductive.
There are no medals for trying, and the attorney who spends hundreds of hours and corresponding amounts of money on a misplaced case will just find an unhappy client at the end of the road. The assessment of damages must be based upon existing treatments and FDA-approved drugs, not new and promising treatments or anecdotal reports of cure. As such, the target of claims in these cases is rarely the oncologist or other specialist treating the terminally ill patient.
Instead it may be the general practitioner who missed the tumor when it was treatable. Considerations of pleasantness and concern should play little part in the lawyer's assessment; one cannot sue an unpleasant practitioner or exculpate a congenial one. The patient may elect not to sue a particular doctor but beyond that cannot select the defendant based upon nonlegal considerations.
Standard of Care
Negligence cannot be presumed from a poor outcome. Cancer medicine is in an area of extensive research with clinical trials, genetic findings and drug testing holding out the promise of cure or remission. With liability as with damages, investigational drugs or new research has no place in the analysis. Until a treatment becomes standard, the physician is not required to use it and one must be careful not to use developing medicine to establish liability or causation.
Damages are an obvious consideration involving many of the same elements as other personal injury claims. Present and future lost wages, pain and suffering, loss of companionship and consortium are assessed to determine the value of the claim. The claim of a 75-year-old retired man with multiple health problems may be limited. Contrariwise, a loss involving a 50-year- old man or woman may entail substantial lost wages. An attorney will typically estimate the amount of damages, the probability of success, and the amount of time required to reach an assessment.
Lost wages entail an assessment of age and employment but also consideration of the patient's overall health. Other health problems will reduce a claim's value and estimate of lost wages.
Some may see the value of a life with continued health problems as limited. However, where a tumor spreads, one can establish substantial pain and suffering through medical records and family testimony. Claims involving the elderly may involve differing opinion by experienced counsel.
At the onset, counsel should determine applicable limitation periods and assess the case in sufficient time to enable the prospective client to obtain other counsel. Given the prevalence, difficulty in diagnosis, and incurability of many tumors, claims cannot be assumed simply because of an unfortunate result. Case evaluation involves review of the curability of the cancer, the extent of delay, the nature of the deviation, and the amount of damages.
Howard Gutman is the author of "Lung Cancer and Mesothelioma," a 450-page book examining the legal and medical issues involved with lung cancer. He has a general practice in Mount Olive which includes delayed diagnosis of cancer claims.