Cancer Misdiagnosis Lawyer
When cancer is misdiagnosed, it has the opportunity to grow and spread. This limits your treatment options and increases the risk of premature death. If you or your loved one has suffered harm because a doctor failed to timely detect cancer, a cancer misdiagnosis lawyer at Levin & Perconti may be able to help you recover substantial compensation.
An accurate cancer diagnosis can mean the difference between life and death. Undiagnosed cancer spreads to distant body parts, making it difficult or impossible to treat. Many cancers have high survival rates when diagnosed early, but the longer cancer remains undetected, the lower the survival rate.
According to Hopkins Medicine, an estimated 100,000 Americans die or become permanently disabled yearly due to diagnostic errors. A Johns Hopkins research team found that 75 percent of all serious effects from diagnostic errors occur in three major categories of disease, known as “the big three,” which include the following:
- Vascular events, or strokes
Of all misdiagnosed conditions, 37.8 percent are cancers, the highest percentage among the big three.
When you report symptoms to your doctor, the doctor has a legal duty to promptly investigate according to well-established guidelines. This is known as a reasonable standard of care. When a doctor misses a cancer diagnosis after failing to exercise due diligence, serious harm may occur. This amounts to medical malpractice.
At Levin & Perconti, our medical malpractice lawyers help misdiagnosed cancer patients and their families hold negligent health care providers accountable.
What Is a Cancer Misdiagnosis?
In most cases, a cancer misdiagnosis is a false negative. A false negative means you have cancer, but the doctor diagnosed a different, often less serious condition. This results in a delayed diagnosis of cancer, which allows it to progress.
While less common, false positives also occur. A false positive cancer diagnosis is a diagnosis of cancer when you have a different condition. A false positive is also harmful because it can cause severe emotional distress and subject you to cancer treatment you do not need, which can have long-term harmful effects.
Is Misdiagnosis Considered Medical Malpractice?
A misdiagnosis is not by itself medical malpractice. Medical malpractice occurs when a doctor’s negligence causes you to suffer harm. To prevail in a cancer misdiagnosis lawsuit, you must prove the following four elements:
- You had a doctor-patient relationship, establishing a duty of care.
- The doctor breached the duty of care by failing to provide a reasonable standard of care when providing a diagnosis.
- You suffered an injury because of the misdiagnosis, which you would not have suffered had the cancer been accurately diagnosed.
- The cancer misdiagnosis, not something else, is the proximate cause of your injuries.
Does a Cancer Misdiagnosis Always Point to Medical Negligence?
Diagnosing cancer is a complex process that often requires the participation of multiple practitioners. A misdiagnosis can occur without anyone violating the reasonable standard of care. However, incompetence or carelessness by even one participant can cause a misdiagnosis.
Our cancer misdiagnosis lawyers network with some of the leading medical experts in the nation, and we can review every step of the diagnostic process, not only by your doctor but by a pathologist or any other health care provider who participated in your diagnosis.
Proving Your Injuries
During a cancer misdiagnosis case, the defense may argue that the misdiagnosis did not make a difference in the outcome.
Our misdiagnosis attorneys anticipate these tactics, and we understand what it takes to refute them and ensure the harm you suffered is brought to light.
The Importance of Early Detection of Cancer
Many cancers have a positive prognosis when detected early. Cancer during the early stages improves survival time, increases quality of life, and reduces treatment costs.
The Progression of Cancer
Untreated cancer tumors become larger, and eventually, some of the cancer cells split from the main tumor and spread throughout the organ where it began, then into the lymph nodes and blood. The cancer then spreads to other organs and bones, even in distant locations throughout the body. This is known as metastasis.
Treatment Options as Cancer Progresses
In many cases, when cancer is isolated to one area of the body during the early stages, you have the highest number of treatment options, including surgical removal of the tumor and targeted radiation. These treatments are often successful in removing cancer without serious long-term effects.
After cancer spreads, surgery cannot remove it from the body. Surgery may still be available to remove the main tumor, but this is not always possible, depending on the type of cancer and the characteristics of the tumor.
In most cases, advanced cancer requires aggressive systemic treatments like chemotherapy. These treatments are associated with strong side effects and are not always successful in eradicating cancer. Sometimes, these treatments can only extend life by a few months. Even if they do result in remission, you may be left with lifelong negative effects.
Survival Rates with Advanced Cancer
As cancer progresses, the odds of surviving for five years or longer decrease drastically. The table below shows the significant differences in survival time between early-stage and advanced cancer, according to the American Cancer Society.
Type of Cancer
Early-Stage 5-Year Survival
Late-Stage 5-Year Survival
These differences in survival underscore the extent of the injury that occurs when a doctor misdiagnoses cancer.
What Injuries Stem from a Cancer Misdiagnosis?
Being misdiagnosed when you have cancer can result in the following injuries and losses:
- Metastasis of the cancer
- The need for more aggressive treatment with increased side effects
- A continuation of pain and other symptoms from untreated cancer
- Denial of necessary pain medication
- Longer, more expensive treatment
- Lost wages
- Premature death
A false positive cancer diagnosis can also result in severe injuries, especially if you undergo cancer treatment. In addition to psychological trauma, you may undergo painful treatment rife with short- and long-term side effects.
This was the experience of Jeff Henigson of Seattle, Washington, who was diagnosed with a brain tumor at age 15. He underwent extensive cancer treatment and learned 35 years later that he never had cancer.
He told the Washington Post that he lived in constant fear of an early demise throughout those 35 years, experiencing anxiety every time he had a headache or underwent an MRI. He wrote a list of his injuries, which included the following:
- Damaged vision
- Damaged hearing
- Hormonal damage
- Lung impairment
- Severe anxiety
- Emotional distress
Missed Opportunity to Direct Your Own Health Care
When you receive a cancer misdiagnosis, you are denied the opportunity to make informed decisions about your health.
For example, you may wish to pursue aggressive treatment to extend your life, no matter how uncomfortable. Or you may choose palliative care options instead to improve your quality of life. If you have been misdiagnosed, this choice is taken from you.
Continuation of Pain and Symptoms
The pain and symptoms that led you to seek a diagnosis will likely continue and worsen over time if you do not receive the correct treatment. Patients with cancer often need stronger pain medications than patients with other conditions, but without an accurate diagnosis, you may be denied adequate pain management.
We have seen multiple cases in which patients continued to notify their doctors about their symptoms, and they were dismissed and treated as if they were wasting the doctor’s time. When they were finally believed, their cancer had progressed too far for a hopeful prognosis. Our cancer misdiagnosis lawyers hold these doctors accountable.
Why Does Cancer Misdiagnosis Occur?
Cancer misdiagnosis may occur when a doctor fails to appropriately investigate symptoms or interprets test results incorrectly.
Errors in Clinical Judgment
According to the Journal of Healthcare Risk Management, 76 percent of missed cancer diagnoses occurred as a result of errors in clinical judgment, including the following:
- Failure to consult with a specialist
- Failure to refer the patient to a specialist
- Failure to order diagnostic tests
- Delay in ordering diagnostic tests
Pathology errors occur when a diagnostic test is carried out or interpreted incorrectly. According to the Roswell Park Comprehensive Cancer Center, this may include the following errors:
- Sampling error – The health care provider misses the lesion or takes an insufficient sample
- Reading error – The pathologist misinterprets cells that mimic cancer
- Contamination error – The sample is mixed up with another patient’s sample
Although a health care provider is supposed to be objective, bias is a widespread problem in the health care field. Biases may be cognitive or personal.
A cognitive bias is an error in thinking and interpreting information. According to the University of Utah and the Journal of the American College of Cardiology, the cognitive biases listed below are common in the health care field. These biases can cause a doctor to disregard pertinent diagnostic facts.
- Anchoring bias – An over-reliance on the first information received with an unwillingness to consider new information
- Attribution bias – A focus on discovering the reason for one’s own observations
- Blind spots – Failure or refusal to see one’s own biases
- Confirmation bias – Interpreting information in a way that confirms one’s existing beliefs
- Framing – Making decisions based on how information is presented rather than considering the facts alone
- Overconfidence – Having more confidence in one’s abilities than in the facts
- Salience – A focus on the symptoms that are easiest to interpret
- Zero-risk – Focusing only on certainties and dismissing ideas that incur risk
- Search-satisficing bias – Believing our current knowledge is complete
- Status quo bias – Favoring options that support current scientific dogma
- False consensus bias – Basing medical decisions on the agreement of others
- Not-invented-here bias – Bias against knowledge or information from external sources
These types of biases can cause a doctor to refuse to consider new information or become stuck on a specific diagnosis, no matter how wrong it is.
Personal biases have no place in medicine but are pervasive, especially racial and gender biases.
According to Medical News Today, white patients are more likely to receive quality health care than non-white patients. According to the Fred Hutch Cancer Center in Seattle, Washington, black people have the highest cancer mortality and shortest survival of all racial and ethnic groups. This is not because of genetics but instead results from unequal treatment.
For example, when black patients present with pain or other symptoms, they may be labeled as drug seekers, as happened to retired nurse Stephanie Walker, who was diagnosed with Stage 4 breast cancer and had metastatic bone disease.
According to a study by Komodo Health, black patients with colorectal cancer wait for a diagnosis an average of eight days longer than white patients and were more likely to be diagnosed after their cancer metastasized. They are 40 percent more likely to die from the disease.
Bias against black patients is a systemic problem in the medical field. In medical school, students are not taught to recognize symptoms that may appear differently in black people, such as skin cancer, according to Stat News.
Women are more likely to have pain symptoms dismissed than men. According to Pain Research and Management, male patients who complain of pain are regarded by health care providers as “brave,” while women are regarded as hysterical or emotional and treated as time-wasters.
As a result, women are more likely to receive a mental health diagnosis, resulting in a physical condition such as cancer being missed.
According to BMJ Journals, among patients with bladder or renal cancers, women are more likely than men to require three or more pre-referral consultations to get a diagnosis.
General Personal Biases
Health care providers may also draw unsubstantiated conclusions about patients with the following characteristics, according to Medical News Today, which may prevent them from being objective in providing an accurate, timely diagnosis:
- Overweight – Health care providers may assume that overweight or obese people are lazy, undisciplined, or unlikely to stick to treatment.
- Low socioeconomic status – Health care providers are more likely to delay testing and avoid referral to specialists based on the assumption that low-income people are irresponsible, unintelligent, or irrational.
- Age – Health care providers may assume older patients are helpless or unwilling to receive treatment and may perceive them as offensive and demanding.
- Ableism – Health care providers may give patients without disabilities preferential treatment while viewing disabled patients as unwell or having a lower quality of life.
- Sexual identity – Health care providers may have an implicit bias against people in the LGBTQIA+ community.
False assumptions about any person based on these attributes can prevent a doctor from being objective when diagnosing cancer. For example, a doctor may assume an overweight person with shortness of breath just needs exercise and refuse to consider lung cancer. A doctor may assume an older adult with fatigue is suffering age-related fatigue when it is a symptom of metastatic cancer.
What Are the Most Commonly Misdiagnosed Cancers?
Missed cancer diagnoses account for approximately 46 percent of primary care diagnostic errors, with the following cancers most commonly misdiagnosed, according to Hopkins Medicine:
- Lung cancer
- Breast cancer
- Colorectal cancer
- Prostate cancer
- Skin cancer
- Pancreatic cancer
- Testicular cancer
We have also represented clients with misdiagnosed ovarian cancer and pancreatic cancer.
Who Is Liable for Misdiagnosis of Cancer?
Liability for misdiagnosing cancer typically lies with the physician or team of physicians responsible for your care, but other parties may have contributed to your misdiagnosis, including the following:
- Laboratory technicians who failed to correctly interpret laboratory results, failed to report them, or improperly labeled them
- Pathologists who collect inadequate samples
- Radiology technicians who inaccurately read imaging tests, fail to report test results, or fail to obtain clear images
- Doctor’s offices and hospitals that employ negligent doctors
- Primary care physicians, oncologists, and other specialists that failed to order the appropriate tests or otherwise investigate your symptoms
Essentially, any health care provider who contributed to your misdiagnosis may be liable, even if you did not meet the provider face to face.
How Can I Prove a Doctor Misdiagnosed Cancer?
It is not enough to prove the doctor misdiagnosed cancer. To prevail in a cancer misdiagnosis lawsuit, you must also prove that the misdiagnosis stemmed from negligence. To accomplish this, your attorney must establish that the information necessary for a correct diagnosis was available to the doctor at the time of the misdiagnosis.
Proving this will generally require a thorough review of your medical records by a medical expert willing to testify on your behalf. During such a review, the following questions must be considered:
- What were your symptoms at the time of diagnosis?
- How long had your symptoms persisted?
- How severe were your symptoms?
- Did you report the symptoms to your doctor? When and how often?
- Did the doctor document your symptoms?
- What tests did your doctor order?
- Who read the test results?
- Were follow-up tests ordered and performed?
- Do the test results show indications of cancer, which the doctor or pathologist should have identified?
- Did the test results warrant follow-up tests that were not ordered?
- Was a referral warranted and not provided?
- Did the doctor obtain a complete, accurate medical and family history?
- Did any health care provider fail to appropriately record medical information?
- Was the doctor’s alternative diagnosis reasonable or unreasonable?
It is necessary to retrace the steps taken during your diagnosis to prove that a reasonable doctor exercising due diligence should have discovered your cancer and that the diagnosis provided was unreasonable or insufficient.
What Damages Can Patients Recover in a Cancer Misdiagnosis Lawsuit?
The damages you can pursue in a cancer misdiagnosis lawsuit include economic and non-economic damages.
Economic damages are compensation for the actual monetary losses suffered due to the misdiagnosis. This may include the following financial losses:
- Medical expenses, including anticipated future medical expenses
- Surgical expenses
- Rehabilitation expenses
- In-home care
- The value of domestic services you would normally have provided
- Lost wages, including future lost wages
- Lost business opportunities
- Loss of earning capacity
Non-economic damages are compensation for the intangible losses you suffered, which cannot be easily measured in dollars. These losses include the following:
- Emotional distress
- Loss of capacity to enjoy life
- Loss of society
- Loss of consortium
Can I Collect Damages If My Family Member Died of Cancer After Being Misdiagnosed?
If a cancer misdiagnosis has tragically led to the death of your loved one, you may be entitled to recover significant compensation for the following in a wrongful death lawsuit:
- Your loved one’s pain and suffering
- The pain, suffering, and grief of your family
- Funeral and burial expenses
- The lost lifetime wages of your family member
- Lost inheritance
- Medical expenses of the deceased
- Loss of guidance
- Loss of comfort
- Loss of parental support
Payout for Cancer Misdiagnosis
The amount of damages you can recover for cancer misdiagnosis is highly variable, depending on such factors as the severity of your injuries and your earning capacity before the misdiagnosis.
Many states limit non-economic damages, but Illinois law has no such limit. Our medical malpractice attorneys can provide you with an estimated case value after learning about the details of your case.
Below are examples of the case results we have obtained on behalf of previous clients who were injured as a result of cancer misdiagnoses:
- $14 million record verdict against a doctor and hospital for a substantial delay in diagnosing lung cancer after ignoring abnormal chest X-ray results
- $8.1 million medical malpractice verdict for the family of a woman who died of lung cancer following a failure to diagnose the disease
- $2.3 million settlement over the death of a 35-year-old mother of three from cervical cancer following a misdiagnosis stemming from a laboratory’s failure to properly read pap smears
How Much Time Do I Have to Pursue a Medical Malpractice Claim for Cancer Misdiagnosis?
The Illinois statute of limitations for medical malpractice claims is generally two years from the date the physician erred.
In the case of a misdiagnosis, the error likely will not be discovered on the date the error occurred. Illinois applies the discovery rule in these cases, which means the clock begins to run on the date you discovered or should have discovered the misdiagnosis.
It is important to contact an attorney as soon as possible after you realize you have been misdiagnosed to ensure your case can be filed before the statute of limitations expires. Once this occurs, you are barred from filing a lawsuit and holding the negligent doctor responsible.
Steps to File a Medical Malpractice Claim for a Cancer Misdiagnosis
The most important step to take in filing a medical malpractice claim is to contact an experienced medical malpractice lawyer as soon as possible. When you contact Levin & Perconti, we will take the following steps to help you recover the maximum compensation available:
- Conduct a thorough investigation of your medical records and each health care provider’s actions
- Consult with medical experts, life care planners, and others who can help us prove your case and understand the full extent of your losses
- Interview witnesses
- File your case ahead of the statute of limitations
- Negotiate for a substantial settlement
- If the case will not settle for the amount you deserve, fight for you in court
Why Choose the Experienced Medical Malpractice Lawyers at Levin & Perconti?
We have over 200 years of combined experience holding negligent health care providers accountable for harming patients. Since our establishment in 1992, we have recovered more than a billion dollars for deserving clients harmed by the health care providers they trusted to protect and restore their health.
Our cancer misdiagnosis attorneys provide personalized, compassionate advocacy, and we will not give up until we get justice. We charge nothing for our services until after we win compensation for you. This ensures finances do not create a barrier to justice.
If a cancer misdiagnosis has harmed you or your loved one, contact us today to schedule a free consultation.
Not only were they so professional but also so caring and thoughtful. It was very difficult going over the facts in our mother's case but they were so compassionate and understanding and allowed us to be with them every step of the way. We were able to sit in on the depositions and we were really able to see how hard they worked on our behalf.