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We expect doctors to have all of the answers when it comes to diagnosing a healthcare problem. But in reality, misdiagnosis and diagnostic errors are surprisingly common in the medical field. A 2015 report from the National Academy of Sciences Institute of Medicine found that it was “likely that most people will experience at least one diagnostic error in their lifetime, sometimes with devastating consequences.”

This is especially true when it comes to a delayed diagnosis of cancer. While many forms of cancer are treatable, any delay in making a proper diagnosis can reduce a patient’s chances of full recovery or even survival. Indeed, failure to diagnose cancer is itself one of the leading causes of death in the United States.

Reasons Why Doctors Miss Cancer

So how does a delayed or missed cancer diagnosis even occur in the first place? There are many common scenarios where this can happen. Here are just a few examples:

• You go to your primary care doctor for a regular checkup. During the examination, some signs could indicate possible cancer, but your doctor either misses those signs or fails to order any follow-up tests to confirm or deny the existence of cancer.
• You present to your doctor with a cancer symptom, even though you do not realize it may be cancer. Again, your doctor then fails to do proper follow-up, such as ordering tests or referring you to an appropriate specialist.
• You are being treated by a healthcare provider for another condition–say you are having elective surgery–and the doctors fail to observe obvious signs of cancer from your blood work or X-rays.
• Your doctor did order the proper tests to screen for possible cancer but those test results were not properly interpreted. For example, a radiologist failed to spot an obvious tumor on an X-ray. Or perhaps a biopsy sample was incorrectly reported as benign by a pathologist.
• Your doctors ordered the right tests but the equipment itself malfunctioned leading to an incorrect result.

Whatever the reason, a delayed diagnosis often decreases the chances of successfully treating cancer. The British Medical Journal reported in 2020 that for cancers requiring surgical treatment, there was a 6 to 8 percent increase in the risk of death “for every four-week treatment delay.” This risk was even greater–9 to 13 percent–for cancers that are normally treated by radiotherapy.

The British Medical Journal study also found that a delay in surgical treatment was especially devastating in cases involving breast cancer. It is estimated that a 12-week delay in treatment leads to 6,100 “excess deaths” in the United States alone. In practical terms, even a six-week delay increased the risk of breast cancer death by 9 percent.

Proving Medical Malpractice Due to a Missed Cancer Diagnosis

Not every missed or delayed diagnosis is considered malpractice. Since malpractice is considered a form of negligence, the person alleging malpractice needs to prove all of the following:

• The defendant owed them a duty of care under the law.
• The defendant deviated from the accepted “standard of care” for someone in their profession.
• That deviation from the standards of care caused the plaintiff harm.

In the case of a delayed cancer diagnosis, it is usually easy to prove the first part. If you are in any sort of doctor-patient relationship, then the doctor does owe you a duty of care.

The second part is often what proves trickiest from a legal standpoint. You have to prove not just that your doctor made a mistake. You have to show that a properly trained doctor in their specialty would not have made the same mistake based on the facts of your case. This generally requires you to produce one or more expert witnesses who have reviewed your case history and can testify under oath that your doctor did not meet even the minimum acceptable standard of care for their profession.

As to the third part, this too can prove more difficult than you might realize. While it may seem like common sense that a delayed cancer diagnosis has caused you harm, the defense can argue that the delay made no difference. In other words, even if your cancer had been diagnosed earlier, it would have had no practical effect on either your treatment or your chances of survival. Again, expert testimony is often required here to combat such claims. You also need to prove your out-of-pocket losses tied to the botched diagnosis, including additional medical bills and lost income due to time missed from work.

How New York’s Statute of Limitations Affects Your Right to Sue Over a Delayed Cancer Diagnosis

Many people are understandably shocked and angered when they learn that their doctor failed to properly diagnose their cancer. They understandably want to hold their doctor accountable for such gross errors in judgment. The first step in this process is to consult with an experienced medical malpractice lawyer.

Malpractice cases are rarely simple. They require careful pouring over your medical records and other files even before filing a lawsuit. This process often takes several months, so the earlier you start the more likely you are to obtain a favorable outcome.

Something else to keep in mind is New York’s statute of limitations. State law imposes a deadline to initiate a medical malpractice claim. This deadline is normally 30 months–or two-and-a-half years–after the alleged malpractice occurred. But when a case involves a missed or delayed cancer diagnosis, this 30-month clock does not start to run until the date you learned about the error or that you could have reasonably discovered the negligence. However, New York also has a seven-year statute of repose, so you cannot bring a medical malpractice claim for a missed cancer diagnosis that occurred more than seven years ago, regardless of when you learned of the error.

Even 30 months is not as much time as you might think when it comes to investigating and building a successful medical malpractice case. So once again, if you have suffered from delayed cancer diagnosis due to a doctor or other health care provider’s errors and need to consult with a qualified New York medical malpractice lawyer in NYC, contact the offices of Silberstein, Awad & Miklos, P.C., right away.