Lung Cancer Medical Malpractice Lawyer

Lung cancer kills 1.59 million people worldwide each year. It has one of the lowest survival rates of any cancer. Curative treatment is no longer an option for more than two-thirds of patients diagnosed at an advanced stage. When lung cancer is misdiagnosed or missed in imaging, it is more likely to progress from an early-stage to an advanced-stage disease with potentially serious medical consequences, especially if many years pass between radiologic exams.

In the US, 12 million patients are misdiagnosed annually. This figure includes 230,000 cases of overlooked lung cancer due to malpractice alone, making it the sixth most common malpractice issue, and the second most common cause of litigation among radiologists. Patients, who suffered as a result of medical malpractice in the form of incorrect, missed, or delayed lung cancer diagnosis, may be eligible to get compensation for their suffering, healthcare expenses, and lost wages.

What Is Medical Malpractice?

Medical malpractice occurs when a healthcare practitioner fails to take appropriate action (e.g., fails to recommend screening to high-risk patients), doesn’t provide appropriate standard treatment, or gives substandard treatments that cause injury, harm, or death to the patient. The definition of malpractice includes four components: 1) that a duty exists to practice the standard of care, 2) that a breach of that duty occurs,  3) that the breach is a proximate cause of injury to the patient, and 4) the injury led to damages. Diagnostic errors are — in many cases – the result of medical malpractice⁵.

A diagnostic error or misdiagnosis occurs when a doctor fails to diagnose lung cancer when a patient has it or when a doctor mistakes a benign condition for lung cancer. The Institute of Medicine describes diagnostic errors as “the failure to establish an accurate and timely explanation of the patient’s health problem(s) or communicate that explanation to the patient.” Due to the complex nature of medicine, misdiagnoses are relatively common. But not every misdiagnosis is considered medical malpractice. For a diagnostic error to be considered malpractice, it has to include the four components of medical malpractice noted earlier.

What Are My Physician’s Responsibilities?

Healthcare practitioners have a responsibility to take reasonable measures to diagnose lung cancer, including advising high-risk patients to get the proper screening. Lung cancer can be generally classified into small cell lung cancer (SCLC) and non-small cell lung cancer (NSCLC). Approximately 85% of patients have non-small cell lung cancer, which is far less aggressive compared to small cell lung cancer. Early detection of lung cancer is associated with better prognosis ( an 80% – 90% cure rate) and higher survival rates. However, two-thirds of patients are diagnosed at an advanced stage where a full cure is no longer feasible.

The United States Preventive Services Task Force (USPSTF) recommended a screening program in 2013 aiming for the early detection of lung cancer. The program states that adults aged 55-79 years old who smoke 30 packs of cigarettes per year or more and those who quit smoking for less than 15 years should undergo an annual low-dose computed tomography (low-dose CT scan) for lung cancer screening. Screening is for those who have no signs or symptoms of lung cancer but are at high risk to develop lung cancer in the near future. The risk of developing lung cancer is determined by many factors including genetics, age, smoking status, diet, and gender.

Screening for lung cancer is a significant strategy for achieving early detection of lung cancer. Lung cancer screening is as important as breast cancer screening with both having the same grade. It’s the first responsibility of a physician to recommend appropriate screening methods for those at high risk of developing lung cancer. If a doctor failed to identify patients at high risk or recommend low-dose CT screening to the high-risk patients, he/she may be found guilty of malpractice.

Doctors have a duty to make the care of the patients their first concern, so any negligence that causes the patient to suffer could be deemed medical malpractice. An example might include the failure to appropriately scan a patient’s X-ray, resulting in an overlooked pulmonary lesion. Among the responsibilities of a physician is to provide an adequate standard of practice and care, such as identifying cases of pulmonary cancer and suggesting the most effective treatment for those cases. Healthcare professionals should treat patients as individuals and respect their dignity, listen to, and respond to, their concerns and preferences, and never discriminate unfairly against patients or colleagues.

When Can I Make a Claim for Compensation?

You may be eligible for compensation if you are in one of the following situations:

• When a doctor fails to diagnose your symptoms properly and/or advise you to take further steps that may have led to earlier intervention.
•   Delays or failures in arranging additional testing after possible cancer symptoms were identified.
•   Where there was a delay or outright failure to refer you to a specialist.
•   When appropriate treatments are not arranged once you are diagnosed with lung cancer.
•  Failure to perform a biopsy or in-depth examination when tissue abnormalities are discovered.
•   When an inadequate or inappropriate response to biopsy results is taken. 

Misinterpretation of Imaging Studies

Chest radiography or computed tomography is typically used to detect lung cancer in asymptomatic patients. In 90% of cases, errors in lung cancer diagnosis occur on chest radiographs, 5% on CT examinations, and 5% on other imaging studies¹. The size of the lesion would seem to be the most significant factor. On a chest radiograph, the minimal lesion that can be detected is 4 mm. Detection rates of 40% to 87% for 1 cm lesions have been reported; however, lesions larger than 1 cm still can be missed¹.

The factors that may lead to missed lung cancer can be divided into three categories: observer performance error, lesion characteristics, and technical considerations. Based on multiple studies, the most common factor in missing a lesion is most probably the first, observer performance error. 

Observer error

Observer performance error means that the physician failed to notice the tumor on chest radiographs even though the tumor is evident. Observer error is most likely the leading cause of lung cancer misdiagnosis. The perception of pulmonary lesions is dependent on the observer’s performance, which can be influenced by the reader’s skills and external factors. Sometimes the radiologist notates the presence of a potential lesion in the radiology report, but the doctor who ordered the scan fails to notice and/or take action on it.

Lesion Characteristics  

Tumor features strongly influence the likelihood of finding pulmonary lesions. The three most crucial characteristics to take into account are size, conspicuity, and location. On a chest X-ray, size primarily affects how the lesions are identified. Tumors with a diameter of less than 10 mm have only a 29% detection rate.

Technical Considerations

Another important factor in determining the detection of pulmonary lesions is whether or not the lesion is clearly discernible. This can be affected by the ratio of lesion contrasted to surrounding tissue and structures, and it is heavily influenced by a tumor’s lack of distinct borders.  For this reason, the likelihood of missing pulmonary cancer is technically determined by the image quality, patient location, and movement. 

Mistaking Lung Cancer for a Benign Condition

Your physician may depend solely on a physical exam to diagnose you with a benign condition rather than lung cancer. Lung cancer shares common symptoms with gastric reflux, COPD, and asthma, for example. Following the doctor’s diagnosis, patients start taking treatments for these conditions. Only after a long period – when the doctor realizes that those treatments are not making any improvements – does he/she start extensive investigations to look for an alternative diagnosis. By the time cancer is diagnosed, it’s often too late to achieve a complete cure.

Failure to Follow Up

In some cases, chest radiographs are inconclusive, which means doctors can neither confirm nor exclude the diagnosis of cancer based on an X-ray alone. Further investigations are needed. If the doctor fails to follow up on these cases, they may miss a lung cancer diagnosis.

Ignoring a Patient’s Claims

Doctors don’t always listen to their patients carefully. This may be caused by a false belief that the patient is exaggerating or the symptoms are caused by another condition that is not worth any further investigation. If you feel dismissed, you must insist on a second opinion and additional investigations. However, if you encounter this difficulty, you will lose valuable treatment time and give your cancer the time to move from an early, curable stage to an advanced stage, which cannot be fully cured.

What Are the Common Features of a Missed Lung Cancer?

The most commonly overlooked lung cancers on chest radiographs are those located in the upper lobe of the lungs. Missed lung cancer is also more common in women (by a margin of 2 to 1), possibly due to a false sense of security because women are significantly less likely than men to get lung cancer.

How Can an Attorney Help?

Medical malpractice is a specific type of practice that deals with professional negligence. Cancer misdiagnosis patients can file a medical negligence, or medical malpractice, lawsuit against the physician or other party responsible for the cancer misdiagnosis. Medical malpractice is regulated by complex rules that differ to some degree from one state to another.

Since not every misdiagnosis is considered medical malpractice, you need to consult with a knowledgeable attorney who has experience with these cases. They will be able to evaluate your situation and decide whether your case makes you eligible for compensation or not.

If you’ve suffered as a result of someone else’s neglect and are dealing with medical bills and huge expenses, as well as the emotional impact on you and your family, contact Rosenblum Law for an initial consultation. We will fight to alleviate some of those burdens by seeking the compensation you deserve.