NEW YORK STATE MEDICAL MALPRACTICE
                                              FAILURE TO DIAGNOSE CANCER CASES

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A medical malpractice plaintiff must prove three elements:

1) negligence,  The physician had a duty to perform A (as shown by medical texts or testimony of a fellow physician) but failed to do so.  Generally, the plaintiff must establish the standard and explain how it was violated, 

2) damage or injury   The plaintiff must show that there was a serious injury.  Medical malpractice claims are rarely brought for small errors or injuries.   

3)  proximate cause The patient must relate the physician's error to the damages which were suffered.   Some errors may be irrelevant.  

One court stated: "The elements of proof in an action to recover damages for medical malpractice are (1) deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage. To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial factor in producing the injury (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308).  Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause unless the matter is one which is within the experience and observation of the ordinary juror (see, Koehler v Schwartz, 48 NY2d 807). The consequence of failure to diagnose cancer is not a matter within the ordinary expertise of a lay person and requires expert testimony (see, Fiore v Galang, 64 NY2d 999).

The record contains sufficient evidence to support the Conclusion that the defendant departed from good and accepted medical practice in failing to send cyst fluid for analysis and in failing to follow up after the plaintiff failed to keep several appointments. However, the trial court properly granted the defendant's motion to dismiss the action because there was no expert testimony causally linking the defendant's negligence with any delay in the diagnosis of her breast cancer or with any injury that was separate and apart from the underlying cancer. 
Lyons v. McCauley, 252 A.D.2d 516, 675 N.Y.S.2d 375 (1998)

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