One of the most common lawsuits in medical malpractice defense is a delay in diagnosis of cancer. According to the National Institutes of Health, the COVID-19 pandemic has affected healthcare services worldwide, including oncology services, and routine cancer screening and treatment have not yet returned to pre-pandemic levels.1 Not only were hospitals redirecting resources to treating COVID-19, patients have delayed screenings due to fear of contracting the virus in a medical setting.
The NIH findings show that cancer screening programs have been clearly interrupted over the past two years, which they anticipate has led to more delayed diagnoses and negative outcomes. While healthcare professionals have needed to focus on preventing the spread of the virus and maximizing their ability to treat COVID-19 patients, it is also important to ensure the standards of care for cancer diagnosis and treatment are being met in order to ensure better outcomes for both patients and healthcare professionals.
Defending Delay in Diagnosis Cases
Delays in the diagnosis of cancer cases can be difficult to defend and can carry with them significant damage exposure. The cases are often emotionally charged and very sympathetic to the patient, especially if the patient has endured multiple hospitalizations, surgeries, radiation, and chemotherapy only to pass away eventually from the cancer. Almost all jurors will have a friend, loved one or family member who has suffered or passed away from cancer.
Under the law, civil litigation is designed to return the party to his or her status quo before the injury occurred. In every case, this is accomplished through money. The jury decides, after hearing all the evidence, how much value to award an injured individual for such things as pain and suffering, medical expenses, lost wages and, in some jurisdictions, a lost chance of survival. Medical malpractice cases are a subset of a general negligence claim, which requires the plaintiff to meet four elements: (1) duty; (2) breach; (3) causation; and (4) injury. Almost all medical providers have a duty toward their patient; the only exception being if the provider never entered a patient-physician relationship. Therefore, almost all medical malpractice cases are litigated on the second and third prongs: did the physician breach of the standard of care and did that breach cause an injury.
Causation and the Standard of Care
The standard of care is defined as what a reasonably competent physician would do under the same or similar circumstances. In Kentucky, as in most jurisdictions, expert testimony is required to prove that the defendant physician breached the standard of care. Without this necessary expert proof, the defense may be entitled to a summary dismissal of the lawsuit. Furthermore, the Kentucky General Assembly recently passed a new law requiring a patient suing a physician to file a Certificate of Merit, which indicates that the patient has consulted with an expert who has looked at the case and who believes that a breach of the standard of care has occurred. Of course, there are general exceptions to the requirement of an expert witness: (1) when the negligence is apparent to a lay person (such as a wrong site surgery) or (2) when res ipsa loquitur applies (the very fact that an injury has occurred allows a jury to find negligence).
Causation – did the breach of the standard of care cause an injury? – must be proven within a reasonable degree of medical probability. Medical probability in the legal sense is much different than in a medical sense. A reasonable degree of medical probability simply means that, more likely than not, something is true. This is often defined as greater than 51%. Expert testimony on causation based upon a “possibility” or what “could” happen is insufficient to meet the legal causation standard. Thus, an opposing expert must testify that the delay in diagnosis of cancer, more likely than not, caused an injury, i.e., led to the patient’s death, or increased his or her morbidity (additional surgery, additional treatment, additional pain).
Because of this causation defense, many states allow for a claim of lost or diminished chance of survival. In other words, because even an earlier diagnosis would not have saved a patient’s life within a reasonable degree of probability, the law allows a patient to recover damages for the reduction of the odds of recovery attributable to the delayed diagnosis, even if it is more likely than not that the patient would pass away regardless.
This is an “equitable” doctrine, and it attempts to provide some recourse for the patient. Equity stems from the old English court of chancery that allowed the courts to practice principles of justice when necessary. Although Kentucky does not follow the doctrine of lost chance, in jurisdictions that allow this type of claim, the expert testimony can be as generic as the patient’s chance of survival would have been significantly improved. However, when awarding damages, the jury must consider the percentage of lost survivability. In other words, if the patient had a reduction in survivability of 15%, this reduces a $100,000.00 total award to $15,000.00.
Importance of Documentation
Because expert testimony is so important in the defense of medical malpractice claims, documentation remains one of the best means for reviewing experts to determine whether or not the physician has met the standard of care or caused injury. Although it seems clear at the time, it is difficult for both patients and providers to recall conversation details that can be very important in determining whether the provider sufficiently explained the diagnosis, prognosis, and next steps. It is always better to over-document than to under-document.
A study by Quest Diagnostics in the Journal of the American Medical Association found a significant decline in newly identified patients with eight common types of cancer in the beginning of the pandemic. Although medical practices are back open, patient concerns remain. According to the study, “The impact of delayed diagnosis may vary with the type of cancer and the extent of delay but could lead to presentation at more advanced stages, with potentially poorer clinical outcomes.”2 Healthcare providers can protect themselves and their patients by ensuring they are familiar with the cancer diagnosis standards of care and meet or exceed them with every patient.
Andrew D. DeSimone is a medical malpractice defense attorney with Sturgill, Turner, Barker & Moloney, PLLC, and chair of the firm’s healthcare law practice group. He can be reached at adesimone@sturgillturner.com or 859.255.8581. This article is intended to be a summary of state or federal law and does not constitute legal advice.
1“Has COVID-19 Affected Cancer Screening Programs? A Systematic Review,” Frontiers in Oncology, Ibrahim Alkatout, Matthias Biebl, Zohre Momenimovahed, Edward Giovannucci, Fatemeh Hadavandsiri, Hamid Salehiniya, and Leila Allahqoli, 11: 675038, May 17, 2021.
2“Changes in Newly Identified Cancer Among US Patients From Before COVID-19 Through the First Full Year of the Pandemic,” JAMA Network Open, Harvey W. Kaufman, MD; Zhen Chen, MS; Justin K. Niles, MA; et al, 2021;4(8):e2125681, Aug. 31, 2021. 10