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What Does an Attorney Look For When Evaluating a Failure to Diagnose Cancer Case in New York?

First, he looks for the basics.

Is there liability?
Is there causation?
Are there damages?

Let's break each one down...

Liability is really 'who is legally responsible' for what was done wrong.
Causation is the link between the doctors' wrongdoing and your injury.
Damages represent all the harms, losses and injuries you suffered because of his carelessness.

An experienced attorney wants to see if your doctor was careless. Did he violate the basic standards of good medical care. If no, then there's no way to proceed forward with a case. If however, the answer is yes, then we look to see whether that wrongdoing, that negligence was a cause of your injury.

If no, then we can't proceed with a case. If yes, then we now look to see what type of injury you suffered because your doctor was careless.

Is that it?
Not really.
There's more to it than that.

If your doctor was careless, we need to ask whether that wrongdoing made a difference in the outcome.
We need to also ask whether that wrongdoing made a difference in your treatment.
If the answer is no, it will be very challenging to bring a case for you.

If we can show that your cancer was localized and had not spread when you first complained to your doctor then the treatment and your outcome would be different compared to what you actually went through.

Let me give you a good example to make this crystal clear.

Let's say you complain to your gynecologist about a lump in your breast during a gyn exam. Your gyn doctor tells you it's just cystic tissue and not to worry about it. No sonogram was suggested. No mammogram was recommended. No follow up with a breast surgeon was suggested.

A year goes by and you notice that the lump in that breast is markedly larger and you notice fluid coming out of your nipple. You go to your gyn doctor who immediately sends you for a sonogram, a mammogram and refers you immediately to a breast surgeon. He gives you the bad news...it's breast cancer. It's advanced. It's already stage IIIB.

The breast surgeon asks why you didn't come to him a year earlier when you first noticed the lump. You tell him that your gyn didn't think it was anything except cystic tissue. You get the sense that he can't believe what he's hearing.

Armed with the suspicion that your doctor may have missed the boat in timely diagnosing your breast cancer you now search for an attorney to answer your questions about whether you have a valid case.

The key question that needs to be answered is:

If your cancer had been timely diagnosed at that time, what would your treatment have been?
Your breast surgeon tells you that a year earlier, your cancer was likely localized to a small lump and had not spread. It was probably stage I and treatable with a lumpectomy and excision of wide margins surrounding the lump.

Now that it's been a full year without any intervention to stop the spread of your cancer, it's now stage IIIB. Surgery is not an option for you. The only thing that can be done now is chemotherapy and possibly radiation therapy. Your prognosis for the future is much worse now than it would have been had your cancer been timely recognized a year earlier.

Your risk of recurrence is also much higher now compared to what it would have been had your breast cancer been diagnosed a year earlier. In this instance, where the outcome and the treatment would have been significantly different, then yes, it would appear that you'd have a valid case. Of course, this would need to be confirmed by a board certified medical expert who reviews all your medical records and confirms that (1) your doctor was careless, (2) his carelessness was a cause of your injury and (3) your injury is significant and/or permanent.

That's what an experienced attorney looks for when evaluating your failure to diagnose cancer case in NY.

To learn more about failure to diagnose cancer cases, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer