Question

Can I sue my doctor / physician for delayed diagnosis of cancer in Massachusetts?

Clyde D. Bergstresser - Personal Injury - Medical Malpractice - Super Lawyers

Answered by: Clyde D. Bergstresser

Bergstresser & Pollock PC
Boston, MA
Phone: 617-682-9211
Fax: 617-451-1070

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Answer

Doctors and physicians, like most other professionals such as lawyers, architects and accountants, owe a duty of care to their patient. When a doctor’s conduct falls below the level of care expected of the average qualified physician practicing in that specialty at that timeframe, the doctor is “negligent” or commits “medical malpractice.” In order to bring an action against a doctor, aside from proving the doctor was negligent, you must be able to prove that you or a loved one suffered harm and that the negligence is what caused that harm.

 A delay in diagnosis of cancer can occur in a variety of ways. For example:

  • A radiologist misreads an imaging study such as an MRI, CT scan or ultrasound resulting in a malignant tumor going undiagnosed and untreated for a period of time.
  • A pathologist is negligent in examining tissue removed during a Pap smear, biopsy or resection by communicating that the tissue is benign rather than malignant or cancerous resulting in the cancer metastasizing and spreading to other parts of the body.
  • An obstetrician/gynecologist fails to perform appropriate screening tests for cancer given a family history or available genetic information resulting in the cancer not being diagnosed until it is large or advanced. 
  • A radiologist or a pathologist, while analyzing images or tissue for another purpose, misses a tumor. This is called a pertinent “incidental finding.” 
  • A radiologist who identifies a pertinent “incidental finding” fails to communicate the finding to the patient or ensure that another health care provider has done so.

These are just some isolated examples of how a delay in diagnosis of cancer can occur, which may very well be actionable in Massachusetts.

In most medical malpractice cases, the patient must prove that the medical care provider’s negligence “more likely than not” caused the patient harm. With respect to a delay in diagnosing of cancer, there is a subset of cases that can be brought when an individual starts out with a chance of survival from the cancer of less than 50%, but the doctor’s negligence further reduces the individual’s chance of survival. This is called the “loss of chance doctrine,” which recognizes that a person’s prospects for surviving a serious medical condition is something of value, even if the possibility of recovery was less than even before the physician’s negligence.

If you have concerns that a doctor, nurse or other medical care provider delayed in diagnosing cancer in you or a loved one, look for an attorney that specifically handles medical malpractice actions, since they are unique and complex cases. Also, do not delay in speaking with a lawyer since like most actions, an action for medical malpractice must be brought within a certain amount of time.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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