Lost Chance of Survival
We take many calls concerning medical negligence cases, and we frequently get inquiries from people who claim their doctor delayed in diagnosing their cancer. These cases can be difficult to evaluate for the following reasons:
1) Proximate Cause – did the delay cause any damage?
2) Burden of Proof – is there actual proof the diagnosis was missed, such as a radiology study that required follow up?
3) Differing types of cancer have different cure rates, growth rates, etc.
Legally, the biggest issue in a delayed diagnosis cancer case is lost chance of survival. Currently, in a death case, a Plaintiff has the burden of showing that the doctor’s malpractice reduced Plaintiff’s chance of a survival to less than 50%. For the best explanation of this issue, review Holt v. Taylor, 344 Ark. 691, 43 S.W.3d 128, 2001 Ark. LEXIS 286 (2001). In Holt, on April 30, 1996, Sheryl Holt was being prepped for gallbladder surgery and underwent a routine chest x-ray. The x-ray noted “a right apical mass, infiltrate and/or plural thickening.” This was abnormal and the radiologist recommended follow up. No action was taken.