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Loss of Chance Doctrine and Delayed Cancer Diagnosis

Our delayed cancer diagnosis lawyers in New York explain the ‘Loss of Chance’ doctrine in delayed cancer diagnosis claims.

Cancer must be diagnosed and treated at its earliest stage. Unfortunately, due to the negligence of doctors and other medical professionals, many patients in Albany, Syracuse and other areas of New York State fail to receive this timely diagnosis and treatment. As a result, the patients’ chance of surviving the cancer or seeing a better outcome may be destroyed or greatly diminished.

 “loss of chance” doctrine
If you or a loved one has received a delayed cancer diagnosis, you may be able to seek compensation through what is called the “loss of chance” doctrine. 
However, establishing a patient’s right to a financial recovery under this doctrine can be a complex process. It requires a thorough investigation, close consultation with medical experts and careful handling of all litigation.

At Powers & Santola, LLP, our medical malpractice legal team can provide the skill, experience and resources it takes to seek just compensation in delayed cancer diagnosis cases, including those that involve the loss of chance doctrine.

delayed cancer diagnoisisTo speak with a delayed cancer diagnosis lawyer and learn more about we can help you, contact us today by phone or online. We can provide a free and confidential consultation.

How Can a Delayed Diagnosis of Cancer Harm Patients?

A delayed diagnosis of cancer can happen for many reasons. In all too many cases, the delay occurs because a medical care provider failed to examine, test or analyze a patient’s records in accordance with the standard of care they were expected to follow.

For example, a doctor may have failed to:

In many cases, a delayed diagnosis of cancer occurs because of a breakdown in communication between medical providers.

cancer misdiagnosis
For example, a miscommunication could occur between a doctor who removed suspected cancer tissue and the pathologist who examined the tissue in a lab. 

When a delayed cancer diagnosis occurs, it can have a devastating impact on the patient and the lives of his or her family members.

In particular, it can keep a patient from receiving timely, effective and less costly treatment, whether that treatment involves surgery, chemotherapy, radiation therapy or a combination of different methods. This is because the cancer may spread to other parts of the body, or metastasize.

For example, according to the American Cancer Society, when prostate cancer is at the “local” stage, the five-year survival rate is nearly 100 percent. However, when the cancer advances to the “distant” stage, the five-year survival rate plummets to 28 percent.

How Can the LOC Doctrine Apply to a Delayed Cancer Diagnosis Claim?

New York is among several states that have recognized a patient’s “loss of chance” as a theory of recovery in a medical malpractice claim. The District of Columbia has recognized the theory as well as:

The District of Columbia has recognized the theory as well as:

In New York, the loss of chance doctrine has not been recognized by our state’s highest court, the Court of Appeals.
In New York, the loss of chance doctrine has not been recognized by our state’s highest court, the Court of Appeals.

Even though it has been accepted as a legal theory in our state’s intermediate appellate courts, rulings have been slightly inconsistent, as a recent New York State Bar Association Journal article notes.

Generally speaking, under the loss of chance doctrine, a patient may be able to recover compensation if it can be shown that, due to medical negligence, there was a delay in the diagnosis of his or her cancer. 
Generally speaking, under the loss of chance doctrine, a patient may be able to recover compensation if it can be shown that, due to medical negligence, there was a delay in the diagnosis of his or her cancer.

Additionally, the patient would need to establish that, due to this delay, the patient suffered some form of harm such as:

Additionally, the patient would need to establish that, due to this delay, the patient suffered some form of harm such as:
  • Diminished chance of survival
  • More expensive medical treatment
  • Greater exposure to pain and suffering.

Three of New York’s appellate divisions, or Departments, have ruled that a patient may recover compensation in a medical malpractice lawsuit if it can be shown that there is a “substantial possibility” that the negligence resulted in a loss of chance for a better outcome. These Departments include the Third Department, which is seated in Albany, and the Fourth Department, seated in Rochester.

However, the Second Department, which is seated in Brooklyn, has ruled that a recovery may be obtained for any loss of chance of a better outcome.

As you can see, seeking a recovery under this doctrine can involve complex litigation. Additionally, an expert will need to be called on to give an opinion on the extent to which a delayed diagnosis resulted in a loss of chance.

An expert may give an opinion in terms of percentages. For instance, let’s say you would have faced a 50 percent chance of survival if your cancer had been timely diagnosed. However, due to a delay in the diagnosis, an expert may opine that your chance of survival has decreased by 25 percent.

It will be important for you to work with a law firm that has experience with these cases as well as access to knowledgeable experts.

What Can Be Recovered in a Loss of Chance Doctrine Claim?

If you or a loved one has lost the chance to a better health outcome due to a delayed diagnosis of cancer, the attorneys of Powers & Santola, LLP, can help you to seek compensation that may include:

We can pursue a settlement with the medical care providers that are believed to be responsible for your harm or, if needed, take your case to trial.

Get Help from a New York Delayed Cancer Diagnosis Lawyer

Our legal team at Powers & Santola, LLP, features three lawyers who have been recognized by the Best Lawyers in America in the area of medical malpractice.

Powers Santola lawyers

You can count on us to provide skilled, compassionate legal assistance if you or a loved one has suffered a delayed diagnosis of cancer in Albany, Syracuse or elsewhere in New York.

It starts by getting in touch with us today and receiving a free consultation about your case. Simply call or connect with us online.

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