In oncology, time is of the essence. Cancer caught early increases the chances of successful treatment.  However, a misdiagnosis or failure to diagnose can delay radiation, surgery, or chemotherapy to a degree that tumor growth becomes irreversible. Delayed treatment can prevent you from receiving treatment at the right time, worsening your outcomes. A misdiagnosis or failure to diagnose can also lead to you receiving incorrect treatment, which might result in additional harm. If you believe a doctor failed to diagnose or misdiagnosed you with cancer, you can file a medical malpractice lawsuit in pursuit of compensation for the losses you have incurred.

How Cancer is Diagnosed

There are three categories of cancer misdiagnosis, including the following:

  • Missed diagnosis —The physician fails to identify cancer at all despite the presence of signs and symptoms
  • Incorrect diagnosis—The doctor diagnosed you with the wrong cancer type or assigned you the incorrect cancer stage.
  • Delayed diagnosis—The doctor makes a diagnosis later than it ought to be, potentially affecting prognosis.

Typically, physicians misdiagnose specific types of cancer due to their complicated signs and symptoms or similarities to other health conditions. Here are some of the common misdiagnosed cancers:

  • Lung cancer
  • Breast cancer
  • Colorectal cancer
  • Lymphoma
  • Pancreatic cancer
  • Melanoma
  • Sarcoma
  • Skin cancers
  • Colon cancer can be misdiagnosed as benign diseases, including irritable bowel syndrome.
  • Ovarian cancer

Here are the different types of approaches your doctor may use to diagnose cancer:

Physical Examinations

Your physician can feel various sections of your body to check for cancerous lumps. During these exams, the doctor checks for any abnormalities, including skin color changes or enlarged organs, that may signal the existence of cancer.

Imaging Tests

These types of tests enable your physician to inspect your internal organs and bones through a non-invasive method.

The specific tests that can diagnose cancer include the following:

  • Bone scan
  • X-ray and ultrasound
  • Computerized tomography (CT)
  • Positron emission tomography (PET)
  • Magnetic resonance imaging (MRI)

Conducting a Biopsy

A biopsy involves your physician extracting a sample of cells for laboratory testing. The doctor can collect the sample in different ways. The most appropriate biopsy procedure depends on your type of cancer and where it is located. Mainly, a biopsy is the only method to definitely diagnose if you have cancer.

In the laboratory, your physician will check the sample cells under a microscope. Healthy cells appear uniform in size and well-organized. On the other hand, cancerous cells are less orderly, with varying sizes and an unorganized appearance.

Laboratory Tests

These tests involve testing urine and blood, which can allow your physician to spot abnormalities that may be due to cancer. For example, in individuals with leukemia, a complete blood count test may show an abnormal number of white blood cells.

Steps to Take if You are a Victim of Medical Malpractice

Failing to act promptly after a doctor fails to diagnose you or misdiagnoses you with cancer can have adverse repercussions on your health, well-being, and legal rights. Here are some steps to increase your chances of obtaining compensation for any losses you have incurred and to prevent further health complications.

Note Down as Much Information about Your Misdiagnosis as Possible

If you think you are a victim of cancer misdiagnosis, record as many details of the case specifics as possible. Here are the details you can note down:

  • The name of the doctor
  • When you called the healthcare provider and what details did you share with them
  • What tests did the doctor perform to diagnose your health condition
  • The type of treatment the doctor prescribed and the outcomes of the treatment plan
  • The case facts that made you think the doctor misdiagnosed you

Gather and Preserve Your Medical Records

Collect every piece of your medical records related to the failure to diagnose cancer or the misdiagnosis and organize them.

The records can be your doctor's notes, tests performed, prescriptions the doctor wrote, and medical imaging.

If the physician who misdiagnosed you has previously treated you for another disease, acquire the medical records to review the reasonableness of their medical care.

Seek Another Opinion

You should consult another competent doctor and obtain a second opinion. The physician you consult should specialize in the same area as the first practitioner who misdiagnosed or failed to diagnose your cancer. The second medical expert will analyze your current health condition and medical history and provide you with unbiased opinions on what you should do next.

Obtaining a second opinion can help you confirm whether the physician misdiagnosed you. The second doctor can identify proof in the medical examinations and records that the first healthcare provider should have considered or seen when making the initial diagnosis. Finally, it helps you obtain the right medical treatment.

Refusing Correspondence with the Defendant

If the defendant discovers you have grounds to file a lawsuit, they or their insurance provider might contact you and offer to conduct an internal investigation. Since their goal differs from yours, you cannot expect them to have your best interests at heart. Therefore, you should avoid discussing the case with them and allow your personal injury attorney to handle your communications.

Hire Legal Assistance 

If you believe you are a victim of medical malpractice, you should hire a qualified and experienced personal injury lawyer. Here is why:

  • The attorney will understand the seriousness of your case — The lawyer is knowledgeable about medical malpractice claims and knows how substandard medical attention can be adverse and drastically impact a victim's life. They can handle the case aspects to achieve the best possible outcome, including communicating the severity of your circumstances to the court. They can also review case factors, like the degree of harm, the cost of follow-up treatment, the amount of quality of life lost, and lost income due to a failed or misdiagnosis. 
  • Your lawyer will guide you throughout the complicated legal process — It can be challenging to navigate the legal process without professional legal guidance. From huge paperwork to translating contracts to defending yourself, you might mishandle your claim and fail to receive fair compensation.
  • Your attorney has access to resources that could increase the chances of receiving fair compensation. They have connections to medical experts and expert consultants who can reinforce your medical malpractice claim.
  • They can handle communication with the insurer and negotiate a satisfactory offer.

Proving Medical Malpractice

When you are harmed by a doctor's failure to diagnose cancer or misdiagnosis, filing a medical malpractice claim might be essential to obtain the compensation and justice you deserve. However, to receive that compensation, you must prove the medical malpractice. 

Here are elements that can support your medical negligence claim:

  • Causation
  • Breach of duty
  • Duty of care
  • Damages, including economic, punitive, and non-economic damages

Causation may be measured with the proximate cause, which is a test that determines if the healthcare professional is responsible for your injury.

Another test used to determine causation is the “but for” test. The test evaluates what may have occurred if the medical practitioner had not been negligent.

If your harm had still occurred, no matter the alleged conduct of negligence, then your claim is invalid.

In the U.S., a regular individual has no duty to assist the plaintiff if there is no special relationship, for example, attorney-client, doctor-patient, or guardian-ward. Nevertheless, if a physician chooses to help others, they become responsible for any harm resulting from negligence.

Once the patient/doctor relationship is established, the physician owes you a duty of care and treatment of skill, diligence, and care as expected of or possessed by a reasonably qualified doctor under similar circumstances, for instance, the standard of care for surgery and treatment.

Showing Duty of Care

To demonstrate your physician’s duty of care, an expert witness can testify or offer an affidavit during any of the following:

  • Deposition
  • Arbitration
  • Trial

The expert witness can be a physician or medical professional with significant experience and education. They can assess your doctor’s medical documents and the decisions they made.

An expert witness can also verify whether the physician made any errors during treatment. If your case proceeds to trial, your expert witness can provide expert testimony.

Statute of Limitations

Statutes of limitation are time restrictions on when you can file a lawsuit against another person or party in Florida.

You should file your medical negligence lawsuit within two (2) years of discovering the medical mistake or after discovering it via due diligence.

No matter when you learnt or ought to have learnt about medical malpractice, the longest period you can take to take legal action is four (4) years from when the incident occurred. However, there are certain exceptions to the four-year timeframe if your case involves fraud or a minor.

Extension If Medical Negligence was Concealed

If your doctor covered up their medical malpractice through fraud or deliberate misrepresentation of facts, your case filing deadline can be extended by two years since you discovered the harm. However, you should sue within seven years from the date of the cancer misdiagnosis or failure to diagnose.

Statute of Limitations (SOL) for Malpractice involving Underage Children

You can file a medical negligence lawsuit for your minor child even after the four-year or seven-year deadlines have expired. You should file the lawsuit before the minor’s 18th birthday.

Extension for Investigating Suspected Medical Negligence

Upon the filing of your lawsuit, your attorney should also file a certificate affirming that they have reasonably investigated the matter and that they believe there are sufficient grounds for filing your medical malpractice lawsuit. 

If your legal counsel requires additional time to investigate, you could request the court to extend the SOL, provided the deadline has not already expired.

A Pause of the Deadline Upon a Notice of Intent

Once your lawyer has concluded their investigation, the law requires you to serve the liable party a notice informing them that you are planning a legal action for medical negligence. The notice triggers a ninety-day period to assess and respond to the claim, pausing the SOl. You cannot file your claim until the ninety-day period has passed.

Common Damages Awarded

Here are the available damages you may expect to receive after a successful medical malpractice claim:

Economic Damages

Also called special damages, economic damages are quantifiable financial losses that result from medical malpractice. These damages seek to provide financial compensation.

Examples of these damages include the following:

  • Medical expenses — Medical damages cover past, current, and future medical expenses associated with your harm, including hospital costs, medication, surgeries, therapy, and rehabilitation.
  • Lost income and earning ability — If the harm hinders you from working, you can be compensated for the income you lost. If your earning capacity is diminished, you may also receive damages for the loss of future earning capacity.
  • Additional costs — These expenses cover assistive devices, home modifications, and transportation costs to medical appointments.

Non-Economic Damages

These damages cover the following:

  • Mental anguish — Mental anguish involves depression, anxiety, fear, and other psychological effects of medical malpractice.
  • Pain and suffering — Pain and suffering damages compensate you for physical discomfort and pain caused by the harm. 
  • Loss of enjoyment of life — The damage compensates you for the hobbies or recreational activities you previously enjoyed but cannot do due to the medical malpractice.

Punitive Damages

Punitive damages act as punishment against the defendant for reckless or egregious behavior and deter similar conduct from happening again. Punitive damages are reserved for extreme cases, involving fraudulent or malicious activity.

The Damages Have a Cap

Florida has a law that caps non-economic damages available to a plaintiff who has successfully sued a healthcare provider.

Find a Competent Personal Injury Attorney Near Me

A misdiagnosis or failure to diagnose cancer can be harmful. It is because some cancers are treatable if caught early, but become less treatable if they have started spreading through the body and attacking other body tissues or organs. Your diagnosis should be accurate and timely. When your doctor fails to perform the right test, ignores your signs and symptoms, or misinterprets your results, you might have grounds for filing a medical malpractice claim.

The Jacksonville Personal Injury Attorney can review your case and provide you with an honest case assessment. The sooner you contact us at 904-800-7557, the sooner we can aggressively fight to recover the losses you have incurred and secure your justice, allowing you to focus on your recovery. We offer free case reviews.