TYPICAL DEFENSES


1.   Proximate Cause The delay in diagnosis did not substantially affect the patient's condition.  The plaintiff in a medical malpractice case must demonstrate proximate cause, that is, the doctor's error significantly altered the patient's condition or chance for survival.  If Dr. Smith missed a cancer diagnosis in July but the disease is diagnosed in September, the delay probably did not affect the patient's prognosis.     

2. Statute of Limitations  Most states have a two year statute of limitations.  Most have adopted the discovery rule; that is, the statute runs not from the date of the error, but from when the patient knew or had reason to know of the error.   Frequently the patient will decide to bring a claim after the statute of limitations appears to have ran.  Note in those sad cases where death is alleged to occur from a medical malpractice delayed diagnosis, a new time period will usually begin from the date of death. 

3. Standard of Care without Retrospection  Many times we can look at the patient's condition and see that he or she had cancer.  However, that is not the test.  If the presentation was atypical or the tests suggested were not part of standard or customary care, there may be no claim.  For example, while a good physician may take a chest x-ray of a smoker, there is no requirement that he do that.   A failure to properly diagnose lung cancer claim would have to show that the patient's symptomology together with his smoking history indicated the need for a chest x-ray or other tests.  We look at what the physician did prospectively based upon the information he had as indicated by the medical records or stated by the patient. 


Howard Gutman is licensed in New York and New Jersey and specializes in failure to diagnose lung cancer medical malpractice claims.  Our office only handles claims in New York or New Jersey.  Our book Lung Cancer and Mesothelioma should be published shortly and we prepare a newsletter dealing with lung cancer. 

Contact Information

Howard A. Gutman, 973-257-9400 
Postal address
230 Route 206, Flanders, New Jersey 07836, 
New York Office 305 Madison Avenue, Suite 449,  New York, New York 10165,


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This site contains over 450 pages of detailed information about treatment, research, caregiver support, chemotherapy, gene therapy, insurance issues and legal questions, along with excerpts from Howard Gutman's book, Lung Cancer and Mesothelioma(2005). See book excerpts below.