Cancer Medical Malpractice Lawyer

• What is cancer-related medical malpractice?
  • Common forms of cancer-related medical malpractice
  • Consequences of cancer-related medical malpractice
  • What to do if you suspect cancer-related medical malpractice
• Finding an Attorney for a Cancer-Related Medical Malpractice Case
  • Costs of pursuing a cancer-related medical malpractice claim
  • How to choose an attorney for a cancer-related malpractice case
  • What happens at a consultation with a medical malpractice attorney
  • Get help choosing a New York cancer medical malpractice lawyer
• Common Types of Cancer in New York State
  • Breast Cancer
  • Prostate Cancer
  • Lung Cancer
  • Colon and rectal cancers
• Pursuing a Lawsuit for Cancer-Related Medical Malpractice
  • Statute of limitations for cancer-related medical malpractice lawsuits
  • Potential defendants in a cancer-related medical malpractice case
  • Elements of a cancer-related medical malpractice claim
  • Common evidence in a cancer-related medical malpractice case
  • Valuing a cancer-related medical malpractice case
  • New York’s comparative negligence rule
  • The litigation process for a cancer-related medical malpractice case
  • Settling a cancer-related medical malpractice lawsuit in New York
• Frequently Asked Questions

What is cancer-related medical malpractice?

Your doctor making a mistake doesn’t necessarily mean that they committed medical malpractice. Instead, to qualify as “medical malpractice,” a medical provider must have failed to meet the appropriate standard of professional care. In other words, the medical provider must have been professionally negligent by doing something they shouldn’t have or failing to do something they should have.

The appropriate standard of care in a case depends on the generally accepted practices and procedures that a professional with similar training and experience would be expected to follow under similar circumstances. As a result, the standard varies from case to case. The section below describes common forms of cancer-related medical malpractice.

Because the medical community determines the standard of care that applies in a case, medical experts play an essential role. In fact, getting the opinion of a qualified medical expert is generally legally required to pursue a medical malpractice lawsuit.

For more information about the role of experts, see Chapter 4: Pursuing a Lawsuit for Cancer-Related Medical Malpractice — Common evidence in a cancer-related medical malpractice case — Expert testimony.

For more information about building a cancer-related medical malpractice lawsuit, see Chapter 4: Pursuing a Lawsuit for Cancer-Related Medical Malpractice.

Common forms of cancer-related medical malpractice

According to New York State’s Department of Health (“NYSDOH”), over one million living New Yorkers have had a cancer diagnosis. There are over 110,000 new cancer diagnoses in New York each year, and 30,000 cancer-related deaths.

One of the biggest factors impacting a patient’s survival is proper medical care. Unfortunately, medical providers do commit errors — whether due to carelessness, inexperience, or some other circumstances. These errors generally fall into two categories: diagnosis errors and treatment errors.

Below is an overview of these two main types of cancer-related medical errors. If a medical provider failed to meet the appropriate standard of care when committing one of these errors, and a patient was harmed as a result, the patient may have the basis for a medical malpractice lawsuit.

Diagnosis errors

According to the Journal of the American Medical Association, diagnosis errors occur in up to 44% of cancer cases. Diagnosis errors include these three types of closely related errors:

• Failure to diagnose. This is when your medical provider fails to recognize that you have cancer at all.
• Delayed diagnosis. This is when your medical provider initially fails to recognize the signs of cancer, resulting in a delay in diagnosis.
• Misdiagnosis. Misdiagnosis comes in a few forms. The most common is when your medical provider mistakes your cancer symptoms for another disease or condition. Another type of misdiagnosis is diagnosing a patient with cancer when they don’t actually have it. A third type is misdiagnosing the specific type of cancer.

Diagnosis errors can result from (among other things):

• Failing to order proper diagnostic tests and procedures (such as MRIs, CT scans, blood tests, biopsies, ultrasounds, and x-rays)
• Improperly administering tests
• Misinterpreting or ignoring test results
• Failing to follow up on abnormal test results
• Failing to take important patient history and information
• Confusing patient files or results
• Disregarding the patient’s complaints, symptoms, and risk factors for cancer
• Failing to promptly refer the patient to appropriate specialists
• Radiology and lab errors, such as failing to properly handle or preserve samples

According to one study in the Journal of Healthcare Risk Management, researchers found that 76% of missed cancer diagnoses involved errors of clinical judgment. Such “errors of clinic judgment” included failure or delay in ordering diagnostic tests or obtaining a consult or referral.

For example, in one case handled by a Rosenblum Law attorney, a client had been diagnosed with an advanced cervical cancer. Prior to her diagnosis, she had years of normal annual pap smear examinations.

A pap smear is a simple in-office procedure where the physician takes a small sample of the patient’s cervical cells. This sample is then sent to a laboratory to check for precancerous abnormalities or cancer. Pap smears are a highly effective way of finding potential gynecological cancer before the patient develops symptoms, which can result in a better prognosis.

Given her years of normal pap smears, the client couldn’t understand how she so rapidly developed an advanced cancer. She was concerned that her earlier pap smears had been misinterpreted and misreported as normal.

These suspicions were confirmed upon a review of the client’s pap smear slides by a medical expert retained by her legal team. The client’s previous pap smear slides documented pre-cancerous cells that became progressively more abnormal over the years and eventually led to cervical cancer.

While the laboratory insisted that they did not agree with the expert’s evaluation, the parties entered settlement negotiations. Ultimately, the client received a substantial settlement for a confidential amount.

Treatment errors

Even if a patient is correctly diagnosed with cancer, the doctor may fail to provide proper treatment. Examples of such treatment-related errors include:

• Failing to put the patient on an appropriate treatment plan
• Subjecting the patient to inappropriate medical procedures
• Failing to refer the patient to specialists
• Chemotherapy or other medication errors, including prescribing or giving the wrong drugs and dosage errors
• Surgery errors, such as removing too little or too much tissue, using the wrong blood type, inadequate pre-op or post-op procedures, and anesthesia mistakes
• Failing to properly monitor the patient’s condition
• Failing to admit or hold a patient for observation
• Failing to address side effects of chemotherapy or other treatment
• Failing to prevent and treat catheter/port infections

Both diagnosis and treatment errors can have serious consequences. Some of these consequences are described in the section below.

Consequences of cancer-related medical malpractice

While any kind of medical malpractice is troubling, missing a cancer diagnosis can be especially dangerous. This is because the earlier cancer is detected and treated, the better the chances of a favorable outcome. If there is a delay in diagnosis, the cancer may progress to a more advanced stage and spread throughout the body.

Once cancer progresses, it often requires more aggressive treatment. For example, chemotherapy may not be necessary for early-stage cancer, but it’s often prescribed for advanced-stage cancers. Chemotherapy is very hard on the body. It comes with many potential side effects, such as bruising, bleeding, fatigue, nausea, hair loss, anemia, and more.

Delays in diagnosis may also result in serious or permanent physical injury, such as nerve and tissue damage, internal organ damage, and loss of limbs. In the worst case scenario, the patient may even die. According to one report, over 35% of diagnosis errors resulting in death or permanent disability are cancer-related.

Cancer-related medical malpractice can have many other consequences as well. For example, a patient may:

• experience prolonged physical and psychological suffering;
• be unable to work or perform their normal daily activities; and
• become increasingly dependent on family members or caretakers.

Some patients do eventually fully recover and return to their previous way of living. However, many others must deal with chronic pain and suffering, permanent disability, and a general decrease in quality of life.

The financial impact of cancer-related medical malpractice is also often significant. The more advanced a cancer is, the more expensive the treatment tends to be. According to the National Cancer Institute, in the United States cancer-related medical care costs over $200 billion per year. Per-patient costs were highest in the last year of life at about $110,000 for medical services and over $4,000 for oral prescription drugs.

Victims of cancer-related medical malpractice may suffer indirect financial losses as well, such as:

• Lost wages
• Daily care expenses
• Transportation to and from medical appointments
• Professional psychological support

When pursuing a cancer-related medical malpractice claim, your attorney will work with you and experts to identify all your losses. Those losses will form the basis for the amount of compensation (or “damages”) you seek in your lawsuit. For more information about damages, see Chapter 4: Pursuing a Lawsuit for Cancer-Related Medical Malpractice — Valuing a cancer-related medical malpractice case.

What to do if you suspect cancer-related medical malpractice

If you suspect cancer-related medical malpractice, below are some steps you should take as soon as possible. Waiting too long to act may harm your ability to pursue a claim and recover compensation for your losses.

• Talk to your doctors. If something about your care or treatment doesn’t feel right, it’s important to speak up. While this can be intimidating, you have the right to ask your doctor questions so you can better understand what happened. Try to remain calm during any conversations, and avoid mentioning a lawsuit. If a medical provider suspects a lawsuit is coming, they may tamper with evidence and make it more difficult for you to gather information. It can help to have a family member or friend present during these conversations for support.
• Keep detailed documentation. As soon as you suspect malpractice, write down as much as you can about your interactions and treatment. For example, it can be helpful to keep a timeline of appointments, hospital stays, treatments, and other relevant events. Also try to keep detailed notes about conversations you have with your medical providers. If possible, note the names of the parties involved, such as doctors, nurses, technicians, administrators, and other witnesses. This account can help you remember critical details later on if you decide to pursue a lawsuit. Your attorney can also use this information to make sure they’ve thoroughly investigated all aspects of your case.

• Get copies of your medical records. Medical records are essential evidence in any cancer-related medical malpractice lawsuit. Medical providers are legally required to provide you copies of your records if you request them. Your attorney can help you get your records later on, but it’s often better to request them sooner rather than later. Unfortunately, sometimes medical providers may alter or destroy records if they’re worried about a lawsuit.
• Contact a medical malpractice lawyer. Proving medical malpractice requires extensive medical evidence and strict compliance with legal rules and procedures. Given the high stakes in these cases, defendants and their insurers are also likely to aggressively defend themselves. To increase the chances of a favorable outcome, contacting an experienced medical malpractice attorney should be a top priority.

For more information about finding an attorney, see Chapter 2: Finding an Attorney for a Cancer-Related Medical Malpractice Case.

Finding an Attorney for a Cancer-Related Medical Malpractice Case

If you suspect cancer-related medical malpractice, it’s important to promptly consult a New York medical malpractice attorney. An experienced medical malpractice attorney can help:

• Determine whether you have a viable claim
• Explain your options
• Thoroughly investigate what happened and how
• Gather evidence and interview witnesses
• Retain qualified medical and financial experts
• Identify all legally responsible parties
• Handle all communications and negotiations with third parties
• Determine the appropriate types and amounts of damages to pursue
• Ensure you meet legal requirements and deadlines

In other words, a good attorney will manage the legal entire process, so you can focus on your health and family. Getting legal guidance as early as possible can also help you avoid mistakes that harm your ability to get fair compensation for your losses.

Costs of pursuing a cancer-related medical malpractice claim

If the cost of legal help is a concern, keep in mind that it’s standard for medical malpractice attorneys to provide free initial consultations. They also generally take cases on a contingency basis. This means that they’ll only get paid if they win money for you in a settlement or at trial. If they don’t win any money for you, you don’t have to pay their attorneys fees.

New York law currently limits the percentage of attorneys’ fees in a contingency arrangement as follows for medical malpractice cases:

• 30% of the first $250,000;
• 25% of the next $250,000;
• 20% of the next $500,000;
• 15% of the next $250,000;
• 10% of any amount over $1.25 million.

Note that some claims may be based on ordinary negligence and not medical malpractice. The standard of care in these cases is based on what a reasonable person would do under the circumstances, rather than what a professional with similar training and experience would have done. In these cases, the contingency fee is generally one-third of the settlement or trial verdict amount.

Medical malpractice attorneys typically advance other costs related to pursuing a lawsuit as well. Examples of such fees include copying, expert, and deposition fees. Medical expert fees can be especially expensive. Experts working on a case must spend time away from their other work to review medical records, perform research, and possibly travel. As a result, they can command high fees. Often, high quality experts charge as much as $1,000 per hour or more.

While medical malpractice law firms generally pay expert and other expenses upfront, they will be reimbursed from any monetary award they win for you. If you decide to hire a law firm, fee and expense information will be spelled out in your engagement agreement.

Free consultations and contingency arrangements are designed to make it easier for victims to pursue justice. Since the victim generally doesn’t have to pay many fees upfront to pursue a medical malpractice case, it’s worth it to at least consult an attorney.

How to choose an attorney for a cancer-related malpractice case

The specific law firm or attorney you choose can have a big impact on the outcome of your case. So you should carefully consider your options before officially hiring someone.

The initial consultation is a good opportunity for you to learn more about an attorney and their firm. You should be sure to ask questions about:

• What makes them qualified to take on your case
• Their specific experience with cancer-related medical malpractice
• Their relationships with qualified medical experts who can support your case

Just as importantly, you should also choose an attorney that makes you feel comfortable. Any kind of lawsuit is stressful, but this is especially true if you’re still dealing with health complications. You’ll be working with your attorney closely during this difficult time, so choosing a lawyer who’s compassionate and responsive can make a world of a difference.

In addition, it can be helpful to ask questions about the lawyer’s financial and personnel resources. Building a strong cancer-related medical malpractice lawsuit requires a lot of time and money. This is true even if the case settles, and settlements are never guaranteed. Throughout the case, the lawyer is generally responsible for advancing litigation costs. So any lawyer you choose should have sufficient resources to carry a complex lawsuit all the way through trial.

Finally, it’s a good idea to get a sense of the law firm’s willingness to go to trial as well. Unfortunately, some lawyers take on cases with the goal of settling them as fast as possible. This is not always in the best interests of the client – and sometimes the defense may not be willing to settle at all.

For example, in one case handled by a Rosenblum Law attorney, a client discovered a breast lump during a self-examination. She consulted an OB-GYN, and the doctor diagnosed the lump as a non-cancerous cyst and told her it was nothing to worry about.

However, the lump persisted, and the client got a second opinion four months later. The second doctor noted that the lump had grown, and he ordered a mammogram and ultrasound. The results indicated that the lump could be cancerous, which was confirmed with a biopsy.

The lawyer ultimately engaged an expert associated with an Ivy League medical institution to support the case. The expert found research supporting the claim that the four month delay worsened the patient’s prognosis. However, the defense also retained an impressive Ivy League breast cancer specialist. The defense expert provided an opinion that the four month delay didn’t affect the client’s prognosis.

Because of the defense medical expert’s strongly held opinion, the insurance company had no interest in settlement. The case went to trial, and even as the jury deliberated, the insurance company didn’t offer a settlement. After several hours of deliberations, the jury awarded a verdict for the client of over $1 million.

As this case shows, it’s possible that a settlement may never be reached. So it’s important that any law firm you hire is willing and able to take your case to trial. For additional information about choosing a lawyer, click here.

What happens at a consultation with a medical malpractice attorney

During an initial consultation, the attorney will gather information about your case so they can determine if they can help you. You should bring any evidence you already have, such as medical records, photographs, and any written accounts of what happened.

If the attorney believes you may have a claim, they’ll ask you to sign an authorization so they can obtain copies of all your medical records, including imaging studies and pathology samples. They’ll then engage a medical expert to review your case.

If both your attorney and the expert agree that you have a viable claim, you may be able to pursue a lawsuit. Given the cost and labor involved in litigation, the potential damages generally must be significant to pursue a lawsuit.

As noted above, the consultation is also an opportunity for you to evaluate whether the attorney is right for you. So you should feel free to ask questions to get a better feel for the attorney’s experience, qualifications, and resources. To make sure you get all your questions answered, it’s helpful to prepare them ahead of time.

The sooner you schedule your consultation, the better. Finding the right attorney and conducting initial investigations can take longer than you think. If you wait too long, you may end up missing critical legal deadlines.

Get help choosing a New York cancer medical malpractice lawyer

At Rosenblum Law, we understand just how devastating cancer-related medical malpractice can be — not just physically, but emotionally and financially as well. If you believe you or a loved one has been the victim of cancer-related medical malpractice, we provide free initial consultations to carefully evaluate the circumstances and help you determine your options.

If we’re able to take your case, we’ll fight on your behalf for the compensation that’s rightfully yours. We’ll manage the entire legal process from day one, so you can concentrate on your family and your health.

If we’re not the right law firm for you, we also provide assistance in finding the best law firm for your case. We have a large network of pre-screened law firms standing by that can take on cancer-related medical malpractice cases.

For a free consultation, call us today at 888-235-9021 or contact us online at www.rosenblumlaw.com/contact. We’re passionate about getting victims of cancer-related medical malpractice maximum compensation for their losses — and you won’t have to pay any legal fees unless we win a settlement or verdict for you.

Common Types of Cancer in New York State

According to the NYSDOH, cancer is one of the most common chronic diseases in New York. It’s second only to heart disease as the leading cause of death. Some of the most common cancers in New York include:

• Breast cancer
• Prostate cancer
• Lung cancer
• Colorectal cancer

Like all cancers, the later such cancers are detected, the more difficult they become to treat. The patient is often subjected to more aggressive treatments. The chances of survival also often decrease significantly.

Below is an overview of these cancer types and why doctors may fail to properly diagnose them. However, it’s possible for any type of cancer to be negligently misdiagnosed and/or treated. If you suspect you or a loved one has been the victim of cancer-related medical malpractice, you should contact a New York medical malpractice attorney right away.

Breast Cancer

Breast cancer forms in the tissues of the breast. According to the NYSDOH, it’s the most common type of cancer in women in New York, and the second most deadly. Possible signs of breast cancer include:

• A new lump or mass
• Swelling of a breast
• Skin dimpling
• Breast/nipple pain
• Nipples turning inward
• Red, dry, flaking, or thickened nipple or breast skin
• Nipple discharge
• Swollen lymph nodes under the arm or near the collarbone

If a doctor misses these symptoms or mistakes these symptoms for another condition, they may not order the proper tests. While a mammography is the most common way to screen for breast cancer, if a woman has a high risk of breast cancer, an MRI may be used as well. Other types of breast cancer screening tests include breast exams, thermography, and tissue sampling.

Even if a doctor orders the proper tests, these tests are not perfect. This means they don’t always reveal cancer when present, resulting in missed diagnoses. Medical professionals may also commit other errors, such as failing to:

• Perform the screening tests correctly
• Properly read the results
• Follow up on abnormal results

Depending on the circumstances, the mistakes described above may qualify as medical malpractice. One study found that 82% of breast cancer-related medical malpractice cases cited negligent delayed diagnosis. Like many types of cancer, delayed diagnosis for breast cancer can be deadly. According to a 2020 study, for every four week delay in surgical treatment for breast cancer, the chance of death increased 6-8%.

At the same time, overdiagnosis is also a problem. In one study published in the New England Journal of Medicine, researchers estimated that breast cancer was overdiagnosed in about 31% of breast cancer cases. That is, tumors were detected in screenings that wouldn’t have led to clinical symptoms.

In these cases, patients may be subjected to aggressive treatments that cause unnecessary physical, mental, and financial harm. Such scenarios may also be the basis for a medical malpractice claim.

Prostate Cancer

According to the NYSDOH, prostate cancer is the most common type of cancer found in New York men, and the second most deadly. Prostate cancer is when cells in the prostate gland (only found in males) start to grow out of control.

According to the National Cancer Institute, some prostate cancers grow and spread quickly, but most are slow-growing. In fact, autopsy studies show that many men who died of other causes also had prostate cancer that never presented symptoms while they were alive. Neither they nor their doctors knew they had prostate cancer.

Early stage prostate cancer rarely presents symptoms, but more advanced stage prostate cancer can cause symptoms such as:

• Urination problems
• Blood in the urine or semen
• Erectile dysfunction
• Pain in hips, back, chest, or other areas from cancer that has spread to bones
• Weakness or numbness in legs or feet
• Loss of bladder or bowel control from cancer pressing on spinal cord

If a doctor misses the patient’s symptoms and/or the risk factors for prostate cancer, they may not order the proper tests. In addition, many of these symptoms are more likely caused by other medical conditions. So it’s possible for a doctor to mistake prostate cancer for something else.

To check if a patient has prostate cancer, there are various screening tests available, including blood tests, rectal exams, and MRIs. If a screening test is abnormal, a patient will need to get a prostate biopsy to confirm whether cancer is present.

Like other types of cancer, even if a doctor orders the necessary tests, they may fail to perform or interpret the tests correctly and miss the signs of prostate cancer. Or sometimes, doctors do detect prostate cancer, but fail to identify the correct stage of cancer or treat it properly. For example, they may perform poorly aimed radiotherapy that damages healthy tissue, remove too much tissue or not enough, or fail to monitor the progress of prostate cancer. Such errors may be the basis for a malpractice lawsuit.

Lung Cancer

According to the NYSDOH, lung cancer is the third most common type of cancer overall in New York, and the second most common among both men and women. It’s also the most deadly form of cancer for both men and women in New York.

There are two types of lung cancer: non-small cell lung cancer (“NSCLC”) and small cell lung cancer (“SCLC”). According to the American Cancer Society, NSCLC is mostly found in people who smoke or formerly smoke, but it’s also the most common type of lung cancer in nonsmokers. About 10-15% of all lung cancers are SCLC. SCLC grows and spreads faster than NSCLC. Aside from these two types of cancers, other tumors can develop in the lungs as well.

Most lung cancers don’t cause symptoms until they spread, though some people do experience symptoms in the earlier stages. Common symptoms include:

• Persistent cough
• Coughing up blood or rust-colored spit or phlegm
• Chest pain that gets worse with deep breathing, coughing, or laughing
• Hoarseness
• Loss of appetite
• Unexplained weight loss
• Shortness of breath
• Persistent or recurring infections like bronchitis or pneumonia
• Wheezing

If lung cancer spreads to other parts of the body, it can also cause symptoms like bone pain, nervous system changes, jaundice, and swollen lymph nodes.

According to the American Cancer Society, most lung cancers are found because they’re causing problems for the patient. However, like many other cancers, most of the symptoms of lung cancer are more likely caused by another medical condition. So it’s possible for a doctor to fail to order the right tests and misdiagnose lung cancer.

If a doctor suspects lung cancer, they’ll typically ask about the patient’s medical history and perform an exam to look for signs of lung cancer. If there are signs that suggest lung cancer may be present, the doctor may order imaging tests, like x-rays, MRIs, PET scans, or bone scans. To confirm the presence of cancer, doctors may also test the patient’s cells in a lab. These cells can come from lung secretions, fluid around the lungs, or a biopsy.

Even if a doctor orders the right tests for lung cancer, they may perform them incorrectly or misinterpret the results. Such errors can result in a missed or delayed diagnosis.

Colon and rectal cancers

According to the NYSDOH, colorectal cancers are the third most common type of cancer among both men and women in New York. It’s also the third most deadly. Colon cancer forms along the colon, or large intestine. Rectal cancer begins in the rectum. These cancers are often referred to together as “colorectal cancer.” In both cases, the cancer typically starts with abnormal growths of tissue called “polyps.” Many polyps are harmless, but some do turn into cancer.

According to the American Cancer Society, colorectal cancer may not initially cause any symptoms. When a patient does have symptoms, they may include:

• Change in bowel habits (diarrhea or constipation)
• Urge to have a bowel movement that’s not relieved by having a bowel movement
• Rectal bleeding with bright red blood
• Blood in the stool that causes the stool to look dark brown or black
• Cramping or abdominal pain
• Weakness and fatigue
• Unexplained weight loss
• Low red blood cell count due to bleeding in the digestive tract
• Jaundice (if the cancer spreads to the liver)
• Trouble breathing (if it spreads to the lungs)

Many of the above symptoms overlap with other conditions, such as hemorrhoids, infection, or irritable bowel syndrome. So it’s possible for a doctor to mistake colorectal cancer for something else. If this happens, they may fail to order the appropriate tests.

A doctor will usually take into account a patient’s symptoms, medical history, risk factors, and family history to determine the appropriate tests. Tests for colon cancer can include physical exams (abdominal and rectal), testing for blood in the stool, blood tests, and imaging tests.

If a doctor suspects cancer, they may then perform a colonoscopy (for colon cancer) or proctoscopy (for rectal cancer). These procedures involve inserting a thin tube with a small video camera attached. If these procedures reveal polyps, the doctors can take a sample for a biopsy and test for cancer.

As with any type of cancer, medical professionals may fail to properly perform and interpret diagnostic tests, resulting in a missed diagnosis for colorectal cancer. For example, if a doctor doesn’t perform a colonoscopy or proctoscopy properly, they may miss polyps and the patient’s cancer can develop further. In one study, the miss rate of colorectal polyps was 17.24%.

Pursuing a Lawsuit for Cancer-Related Medical Malpractice

Pursuing a cancer-related medical malpractice case is a complicated endeavor. To avoid becoming overwhelmed or making mistakes that harm your case, it can be helpful to gain a basic understanding of how medical malpractice claims work.

Below is a general overview to get you started. However, keep in mind that every case is different. Part of your lawyer’s job is to guide you through the entire legal process. If you have any questions about your specific case or what to expect, you should consult with your lawyer.

Statute of limitations for cancer-related medical malpractice lawsuits

Most lawsuits must be filed by a legal deadline set forth in a law called the “statute of limitations.” In New York, the deadlines for medical malpractice cases are set forth in Civil Practice Law & Rules § 214-A.

Under this statute, for most types of medical malpractice, patients can generally file a lawsuit within 2.5 years from the later of:

• the date of the medical provider’s action, omission, or failure that harmed the victim; or
• the date of the last treatment where there was continuous treatment for the same illness, injury or condition (called the “continuous treatment” doctrine).

However, there is a special deadline for cancer misdiagnosis cases. If a claim is based on a negligent failure to diagnose cancer or a malignant tumor, patients can file a lawsuit within 2.5 years from the later of:

• the date the person knew or should have reasonably known of the misdiagnosis (provided the lawsuit is filed within 7 years of the misdiagnosis); or
• the date of the last treatment where there is continuous treatment for an injury, illness, or condition.

This special deadline is called “Lavern’s Law.” It was passed after the death of Lavern Wilkinson. Ms. Wilkinson got an x-ray in 2010, but she wasn’t diagnosed with lung cancer until doctors looked at the same x-ray three years later.

If doctors had caught the cancer in 2010, it could have been treated. By the time it was discovered, it had already spread to other organs. Ms. Wilkinson died in 2013. Although the doctors had made a serious mistake, the statute of limitations at the time only gave victims 15 months from the misdiagnosis to file a claim. As a result, she was not able to pursue a medical malpractice lawsuit.

Note that some cases have shorter deadlines. For example:

• Under New York’s General Municipal Law Sec. 50-E, to sue a government entity, a notice of claim must generally be filed within 90 days after the cause of action arises.
• Under New York’s Estates, Powers, & Trusts Law § 5-4.1, a wrongful death claim must generally be filed within two years from the date of death.

Other cases may have longer deadlines, such those based on ordinary negligence claims. The standard of care in an ordinary negligence case is based on what a reasonable person would do under the circumstances, rather than what a professional with similar training and experience would have done. Ordinary negligence claims have a statute of limitations of three years from the negligent act that caused harm.

For example, in one case handled by a Rosenblum Law attorney, the client was hospitalized for acute abdominal symptoms for three days. During that stay, his treating physician ordered a CT scan, and it was performed on his last day in the hospital. When the client was discharged, the CT results were unknown. The CT scan report was later faxed and mailed to the client’s physician’s office.

The CT scan report described an “ominous growth” on the client’s liver, which required a prompt biopsy. However, the client’s physician’s office filed the report without ever informing the client of the results. Two years later, he was diagnosed with advanced liver cancer.

At the client’s first oncology visit, the oncologist asked why he had not gotten a liver biopsy as recommended by the CT scan report two years earlier. The client realized that he hadn’t received the report and sought legal advice.

By that time, the medical malpractice statute of limitations of 2.5 years had passed. However, the lawyer was still able to pursue an ordinary negligence claim based on the fact that the medical office had failed to communicate the CT scan report to the patient.

Unfortunately, the client died before the resolution of the case, but his estate representative continued the lawsuit. Both parties were interested in settling, and a settlement was ultimately reached for several millions.

As this case shows, the specific deadlines that apply to your case depend on the circumstances. As soon as you suspect malpractice, you should contact a lawyer to confirm which deadlines apply to your case. If you miss any deadlines, you may not be able to proceed with your lawsuit.

Potential defendants in a cancer-related medical malpractice case

Individual doctors are often named as defendants in cancer-related malpractice cases. Sometimes, other medical providers may also be legally responsible for a victim’s losses. Such defendants may include, among others:

• Hospitals or clinics
• Radiologists
• Lab, x-ray, and other medical technicians
• Nurses
• Anesthesiologists

Note that parties who are not medical providers may be named as defendants as well. The appropriate defendants in your case will depend on the specific errors and who was involved. Your attorney will help determine who may be responsible in your case. This will require some investigation, as you’ll need to have enough information about how each defendant contributed to your injuries.

For example, in Stoddard v. New York Oncology Hematology, PC, a patient was diagnosed with colon cancer. She was prescribed a chemotherapy treatment known as FOLFOX 6, which included a dose of the drug fluorouracil. She was informed that if she had a certain gene mutation, she shouldn’t have FOLFOX 6 because it could cause a toxic build-up of fluorouracil. The patient didn’t know whether she had the gene mutation. No one told her that there was a lab test available to detect it, either.

After treatment began, the patient experienced side effects. She was admitted to the hospital and later died. The administrator of her estate filed a lawsuit against a hospital, two medical practices, and 12 physicians claiming medical malpractice. However, the plaintiff was not specific enough in describing the negligence of some of the defendants. As a result, the plaintiff was not allowed to enter evidence for her claims against those defendants.

Elements of a cancer-related medical malpractice claim

A late-stage cancer diagnosis, misdiagnosis, or other bad outcome alone is not enough to support a medical malpractice claim. Rather, winning a cancer-related medical malpractice requires proving four specific components of a claim (called “elements”).

The four elements of a cancer-related medical malpractice case are as follows:

• Duty. First, you have to prove that the medical provider had a duty to you. This typically means establishing that there was a doctor-patient relationship. You also have to provide evidence establishing the appropriate standard of professional care. In any medical provider-patient relationship, the medical provider has the duty to act with the same skill and care ordinarily used by well-qualified professionals under similar circumstances. This is called the “duty of care.” The nature of a medical provider’s duty is one of the most contentious issues in a medical malpractice case. You’ll need the help of medical experts with appropriate medical qualifications, training, and experience to establish the duty of care. For more information about the role of experts, see Common evidence in a cancer-related medical malpractice case — Expert testimony below.
• Breach. Next, you have to show that the medical provider breached the duty of care. That is, you have to prove that they didn’t provide appropriate care or treatment under the circumstances. This may be because they did something they shouldn’t have, or didn’t do something they should have. This can be shown through expert testimony, medical records, and other evidence.
• Causation. A medical provider breaching their duty of care doesn’t necessarily mean you’re entitled to any compensation. You also have to show that the breach caused your injuries. That is, you have to show that if it weren’t for the medical provider’s actions (or failure to act), you wouldn’t have experienced the same injuries.
• Damages. Finally, you have to prove the losses (or “damages”) you suffered as a result of the medical provider’s error. For example, you may have had to endure more pain, more extensive surgery, or more aggressive treatment than you otherwise would have had the cancer been caught earlier. Damages can be economic in nature (such as medical bills and lost wages), or non-economic (such as pain and suffering).

If you fail to prove any of these elements, you won’t be able to win your case.

For example, in Bingbing Xie v. Yan Fang Chen, the plaintiff sued a medical provider for allegedly negligently using a nurse to perform duties that should have been performed by a medical doctor and failing to diagnose her leukemia. However, the leukemia was diagnosed five days later.

The defendant filed a motion to resolve the case in their favor without a full trial (called “summary judgment”). In support of that motion, the defendant submitted medical opinions stating that 1) the delay didn’t impact the plaintiff’s treatment or outcome of her illness, and 2) the nurse’s care was in accordance with good and accepted standards of care.

The plaintiff didn’t submit any medical opinions in opposition to the motion. As a result, the court granted the summary judgment. In reaching this decision, the court found that the defendant sufficiently proved that it didn’t breach its duty of care and that the plaintiff was not injured by its actions or omissions.

If your lawsuit goes through trial, the judge or jury will evaluate all evidence and decide whether you’ve sufficiently proved each of these elements. If you fail to meet certain legal requirements in a lawsuit, the judge may throw out the case before a verdict is reached. Even before trial, the parties will look at all evidence to determine the strength of your claims. This can affect settlement negotiations.

Common evidence in a cancer-related medical malpractice case

Proving each of the elements described above will require a lot of evidence. You should start collecting such evidence as soon as you suspect malpractice. Your attorney will also help you identify and gather the right evidence to support your case.

Once a lawsuit has begun, it will go through a phase called “discovery.” During this time, both sides of the lawsuit will request documents and information from the other side to help them build their cases.

For example, your lawyer will likely request records and information about past lawsuits from the defendants. The defense will also likely seek records of all your past medical treatment and other lawsuits. If you’re claiming lost wages, they may also seek copies of your tax returns and employment records.

Below is an overview of other common evidence in cancer-related medical malpractice lawsuits.

Medical records

The patient’s medical records are one of the most important pieces of evidence in any cancer-related medical malpractice case. Medical records document your medical care and history. They include documents such as:

• Medical evaluations
• Doctors’ notes and observations
• Test results Radiology images
• Treatment plans
• Prescriptions

You should request your medical records as soon as you suspect malpractice. Unfortunately, sometimes medical records can be altered, destroyed, or lost over time — especially if the medical provider anticipates a lawsuit.

You have the right to get copies of your medical records upon request. Medical providers can’t legally deny your request for your medical records. This is true even if you have unpaid bills. If multiple medical providers were involved in your care, you may need to request them from each provider. Your attorney can help obtain all your medical records from your health care providers.

Other documentation of injuries and damages

As noted above, part of winning a lawsuit is proving the extent of your losses, or damages. For physical injuries, your medical records can help show the harm you suffered. However, you should also take photos/videos if possible. Photos aren’t usually part of your medical records, but they’re often persuasive pieces of evidence, especially for a jury.

You’ll also need to gather evidence of all your economic losses. Medical bills can show the cost associated with your treatment. Medical malpractice victims often incur other out-of-pocket expenses, too. For example, you may have to pay for home care, medical appointment transportation, and more. When gathering such evidence, it’s best to be overinclusive. Your attorney can help sort through expenses and decide what can be included.

For future economic damages and non-economic damages (like pain and suffering), your lawyer will work with experts to assign a reasonable dollar value. For more about damages, see Valuing a cancer-related medical malpractice case below.

Depositions and witness testimony

Witnesses are people who have firsthand information about facts relevant to your case. If a case goes to trial, both sides may call on certain witnesses to testify in court.

Before a trial, both sides of the lawsuit will also conduct depositions. A deposition is a sworn out-of-court testimony. During a deposition, the attorney will ask a witness questions. Depositions are often videotaped and may be shown at trial so the jury can see the witnesses’ demeanor.

Depositions are an important part of preparing a case. Depositions of the relevant health care providers are especially useful in fully documenting the medical facts surrounding your care. These depositions can also help establish their side of the story and what their defenses are.

Note that the defense will also likely depose you. This can feel intimidating, but your lawyer will be present with you during the deposition. They should also help you prepare ahead of time so the experience is as comfortable as possible.

Expert testimony

Expert witnesses play a central role in cancer-related medical malpractice cases. By law, medical malpractice claims must generally be supported by the opinion of one or more medical experts who have reviewed the patient’s medical information.

In particular, a medical expert will help establish:

• The standard of care that applies to your case
• Whether or not the defendant violated the standard of care
• Whether the defendant’s actions caused your injuries
• The damages resulting from your injuries

Your lawyer will be responsible for engaging the appropriate experts. So when choosing an attorney, you should choose one who has relationships with high quality experts. At the time a lawsuit is initiated or shortly thereafter, your lawyer will have to certify under oath that they have consulted a suitable medical expert who finds merit to the claim. Medical experts must meet certain requirements in terms of specialization in the relevant medical field.

If you don’t have qualified experts on your side, you likely won’t be able to win a medical malpractice claim. In Scarinci v. Zelefsky, for example, the plaintiff claimed the defendants, among other things, failed to timely and appropriately treat his initial diagnosis of prostate cancer.

The defendants filed a motion to resolve the case in their favor without a trial (called “summary judgment”). This motion was based on expert medical opinions that stated the defendants’ treatment followed “good and accepted standards of medical practices.” The plaintiff didn’t submit any medical opinions of his own. As a result, the court granted the motion for summary judgment in favor of the defendants.

Your case may also need support from other types of experts, such as financial experts who can help calculate a fair amount of past and future damages.

Keep in mind that the defense will have their own experts, and the judge or jury will be more likely to believe an expert with strong credentials. Examples of helpful credentials include:

• Having a clinical practice
• Being on faculty at a medical school
• Actively participating in medical research
• Being an author of numerous peer-reviewed medical publications.

Some cases turn into a “battle of the experts.” By getting highly qualified experts on your side who can survive rigorous cross examination by the defense, you’ll increase your chances of a successful outcome.

For example, in one case handled by a Rosenblum Law attorney, a client had routine annual physicals which included prostate-specific antigen (“PSA”) tests to screen for prostate cancer. In 2014, his PSA test result was highly abnormal, and he had a prostate biopsy. The biopsy confirmed that he had high-grade prostate cancer. Doctors also found cancer cells in his lymph nodes, which indicated that the cancer had spread from his prostate to other organs.

The client sought cancer treatment and requested his records from his family doctor. He discovered that his PSA test result had been highly abnormal a year earlier. However, the client was never informed of these abnormal results or the need to have a biopsy a year earlier.

Delays in treating prostate cancer isn’t always malpractice. Prostate cancer can be slow-growing and may not be lethal, and surgical-radiation cancer treatment can sometimes cause permanent impotence and incontinence. To avoid these conditions, sometimes the best plan is “watchful waiting” instead of treatment. Whether a treatment delay is malpractice will depend on the facts.

The lawyer retained an expert who believed the one year delay resulted in a worse prognosis. This opinion was supported by the Memorial Sloan Kettering Prostate Cancer Nomogram, which is a tool used to predict prognosis and survival. The expert had published a widely-used prostate cancer textbook and treated prostate cancer patients at a national cancer treatment center.

However, the defense also engaged a well-credentialed prostate cancer expert. The defense expert was on faculty at an Ivy League medical school and published an annual journal for a prestigious institution on prostate cancer. The defense expert didn’t believe the delay affected his prognosis, and his opinion was based on a theory that was successfully used in other prostate cancer cases.

In a case such as this where experts on both sides are strong, going to trial is especially risky. Both sides agreed to mediation, and the case was ultimately settled for an amount in excess of $1 million.

Valuing a cancer-related medical malpractice case

The types of damages available in a cancer-related medical malpractice case are similar to those available in other personal injury cases. Damages can fall into three general categories:

• Economic damages. Economic damages are compensation for monetary losses related to your injuries. Such damages can include past and future medical treatment, personal care expenses, lost wages if you have to stop working (or change the amount or type of work you do), and other expenses. A deceased victim’s family may also pursue compensation for their own monetary losses. Such damages may include loss of income, household services, parental guidance, or support and funeral expenses.
• Non-economic damages. Non-economic damages are compensation for losses such as pain and suffering, emotional distress, disability, impairments, or loss of quality of life. Due to the subjective nature of these losses, they’re often more difficult to calculate. In awarding non-economic damages, the judge or jury will generally consider the nature of the injury and the impact on your life.
• Punitive damages. Unlike the damages above, punitive damages aren’t compensatory in nature. Instead, they’re designed to punish and deter especially harmful behavior. This means punitive damages are typically only awarded in cases involving intentional, extremely reckless, or fraudulent behavior. This is rare in cancer-related medical malpractice cases.

The types and amounts of damages available in any case will depend on the specific facts. Your attorney will work with experts to determine the amount of damages in your case. If the case goes all the way to a trial verdict, the judge or jury will decide the amount of damages to award.

New York’s comparative negligence rule

In personal injury lawsuits, including cancer-related medical malpractice cases, New York allows the defense of comparative negligence. Under this rule, if you’re found partially at fault for your injuries, your damages will be reduced by the percentage of your fault.

For example, if your doctor gave you a negligent late cancer diagnosis and you failed to take prescribed medications or follow orders, a judge or jury could find that both you and your doctor contributed to your injuries. They would then assign a percentage of fault to each of you. So if the jury found the damages were $1,000,000, and you were 10% at fault, your damages would be reduced by $100,000. The doctor would then be responsible for the remaining 90%, or $900,000.

The litigation process for a cancer-related medical malpractice case

The legal process can be intimidating, especially if you’ve never been involved in a lawsuit. There are a lot of strict rules and procedures and a lot of moving pieces.

A lawsuit officially begins when your attorney files a Summons and Complaint with the court. The defendant will then have a chance to file a response. Next, the lawsuit will move into what’s called the “discovery” phase.

During discovery, both sides will exchange information and evidence to help build their cases. There will also likely be a number of motions and hearings. At the same time, the parties will likely start settlement negotiations. If the parties can’t reach a settlement, the case will continue to a trial.

If a case goes all the way through trial, it can take years to reach a final verdict. Many cases take 3-5 years to reach a resolution. However, some cases resolve sooner, especially if the parties can quickly reach a settlement agreement as described below.

You can learn more about what to expect during the litigation process here. If you have any questions about the process, you should consult your attorney. Part of your attorney’s job is to guide you through the entire process, prepare you for each step, and help you make any necessary decisions.

Settling a cancer-related medical malpractice lawsuit in New York

Generally, each medical malpractice case is prepared with the assumption that it will go to trial. However, as noted above, many cases don’t go through the entire trial process. Instead, they’re resolved through what’s called a “settlement agreement.” If the claim involves an infant or deceased individual, the settlement must be approved by a judge.

Reaching a settlement is faster and less expensive than going through an entire trial. The outcome of a trial is also never guaranteed, no matter how strong a case seems to be. In addition, many medical malpractice claims that go to trial result in a verdict for the defense. All of these factors mean settling is often the preferred outcome for plaintiffs. Still, malpractice insurance carriers frequently resist offering a fair amount, or refuse to settle at all.

If both parties in a lawsuit are open to settling, they may negotiate directly, or they may agree to a process called “mediation.” Mediation is a non-binding process led by a mutually agreed-upon neutral third party called a “mediator.”

The mediator’s job is to help the parties reach a settlement amount and terms. The mediator will meet the parties to discuss the case, including the strengths and weaknesses of the claims and defenses.

Whether the parties negotiate directly or agree to mediation, reaching a settlement agreement is rarely easy. Defendants and their insurers naturally want to pay out as little as possible. Low offers are common, especially in the beginning. As a result, it often takes a while to reach a settlement. Sometimes, a settlement isn’t reached until after the trial has started. It’s possible to reach a settlement any time before the court reaches a verdict.

Note that sometimes insurers and medical providers will offer settlements before a lawsuit is even initiated. However, you should never accept an offer or sign any documents without talking to an attorney first. This is true throughout the entire process.

Once you accept an offer, your claim will be considered resolved and you’ll no longer be able to pursue the claim in court. To ensure you don’t lose valuable compensation, you should work with an attorney to evaluate the fairness of any offer.

Frequently Asked Questions

Below are some common general questions about cancer-related medical malpractice in New York. However, every case is unique, so it’s best not to make assumptions about any aspect of your claim. If you have questions about your specific situation, you should consult an experienced New York medical malpractice attorney right away.