Cancer misdiagnosis victims may be able to file a medical negligence, or medical malpractice, lawsuit against the doctor or other party responsible for the cancer misdiagnosis. When filing a lawsuit against another party, the patient or patient’s family is referred to as the plaintiff. The doctor or other party in question is referred to as the defendant. A cancer misdiagnosis lawsuit may be filed against any party responsible for the cancer misdiagnosis, such as a nurse, pathologist, or any company or entity that employs the responsible personnel.
A cancer misdiagnosis can be complex and time-consuming. When patients believe that medical negligence was the cause of their cancer misdiagnosis, the patients and their families should seek the legal assistance of a cancer misdiagnosis lawyer. A cancer misdiagnosis lawyer can review the case’s facts, file a cancer misdiagnosis lawsuit, and follow-through with the legal process.
Cancer Misdiagnosis Case Elements
As with any medical negligence lawsuit, the plaintiff holds the burden of proof in a cancer misdiagnosis. This means that the plaintiff is responsible for providing sufficient evidence that the defendant is guilty of the claims made by the plaintiff. In order to do this, the plaintiff must prove basic elements that establish a medical negligence lawsuit.
The plaintiff must prove that:
- There was a “doctor-patient” relationship
- The doctor acted negligently, which led to the cancer misdiagnosis
- The doctor’s negligence cancer misdiagnosis caused harm to the patient
- The patient’s cancer misdiagnosis harm resulted in specific damages
If the defendant is a doctor, the plaintiff must first prove the existence of a doctor-patient relationship. This means that the doctor was “hired” by the patient through an agreement from both parties. When a doctor-patient relationship is established, the doctor accepts legal responsibility for providing the patient with a certain level of care. If a proper doctor-patient relationship was never established, the plaintiff’s case may not be legally standing. In cancer misdiagnosis cases where the defendant is not a doctor, the same principle applies.
The plaintiff must then prove that the doctor or party acted negligently during treatment of the patient. Medical negligence is defined as carelessness or lack of proper care and attention toward a patient. In order to prove negligence, the doctor’s actions will be examined to determine if the doctor met the industry’s standard of care. The standard of care is the level care that all patients are reasonably expected to receive. This is typically assessed by comparing the actions of the doctor to the actions of another doctor with similar skill, knowledge, and specialization.
Patient Injury and Damages
Once the doctor’s negligence has been established, the plaintiff must prove that the negligent action in question was the cause of the patient’s harm. The patient’s harm must be able to be classified as certain types of legal damages. Damages are classified as economic (special), non-economic (general), and punitive.
Cancer misdiagnosis damages may include:
- Additional past and future medical bills
- Lost wages due to missed work
- Lost earning capacity due to disability
- Pain and suffering
- Loss of quality or enjoyment of life
- Loss of consortium, or loss of companionship
Proving Cancer Misdiagnosis
In a cancer misdiagnosis lawsuit, the plaintiff must be able to prove that the cancer misdiagnosis occurred as a direct result of the negligence of the doctor or other party in question. This is an important step of the legal process, as cancer misdiagnosis can occur despite full competency and attention from the treating doctor. Proving that the doctor’s negligence led to cancer misdiagnosis is often a difficult and complex process.
The plaintiff may have a cancer misdiagnosis case if:
- The doctor failed to identify symptoms that were reasonably apparent, and thus would have been identified by a similar doctor
- The doctor failed to order the appropriate cancer testing, despite the presence of certain symptoms that would cause a similar doctor to order testing
- The doctor did not use proper protocol or procedure when conducting cancer testing, leading to errors in the test results
- The doctor disregarded laboratory recommendations to conduct additional testing based on the results of a test, such as a tissue sample biopsy
- The testing laboratory failed to identify or analyze abnormal cell activity, such as abnormal growth patterns in a tissue biopsy
Hiring a Cancer Misdiagnosis Lawyer
Patients who wish to file a cancer misdiagnosis lawsuit should speak with an experience cancer misdiagnosis lawyer as soon as possible. A cancer misdiagnosis lawyer can help to determine if the patient has a case by collecting preliminary data surrounding the incident and conducting medical and legal research needed for a potential case.
In some states, certain medical negligence laws may affect the patient’s ability to file a case. The cancer misdiagnosis lawyer will help to navigate these laws and apply them when necessary. Once a lawsuit has been filed, the cancer misdiagnosis lawyer can provide guidance and legal assistance through the duration of the legal process.
Bal, B. Sonny. “An Introduction to Medical Malpractice in the United States.” Clinical Orthopaedics and Related Research. 467.2 (2009): 339-347. Print.
“Burden of Proof.” Legal Information Institute. Cornell University Law School, 19 Aug 2010. Web. 17 Nov 2013. <http://www.law.cornell.edu/wex/burden_of_proof>.
Stein, Alex. “Toward a theory of medical malpractice.” Iowa Law Review. May 2012: 1201+. Academic OneFile. Web. 17 Nov. 2013.