You've always been a healthy, active person. You make and keep your yearly appointments with your trusted family physician. You trust that your doctor is performing the correct screenings and exams, according to your age, medical and family histories. You follow your doctor's instructions, you maintain a healthy lifestyle and enjoy a high level of physical fitness and activity.

For no apparent reason, your health takes a turn for the worse and you seek the help of a specialist to find the cause. After several rounds of testing, you receive extremely bad news - you have cancer. If this wasn't difficult enough, you find out that you have had it for some time now; but, because of the delay in diagnosis, it is going to be that much more of an uphill battle to regain your health, if you can.

Unfortunately, this is an all-too true story. Cancer misdiagnosis is one of the most frequently committed medical errors. Some of the most common types of cancer that are misdiagnosed include:

. Lung cancer
. Breast cancer
. Prostate cancer
. Cervical cancer
. Colon cancer
. Esophageal (or throat) cancer

For most types of cancer, the earlier the disease is caught, the better the chances for survival. Of course, not all cancers are the same - some are more aggressive than others, some grow more slowly, others spread, or metastasize, more quickly. It stands to reason, however, that the sooner the physician knows what they are dealing with, the more time they will have to develop a sound program to treat the cancer.

In addition to increasing the odds of survival and providing the patient with a better quality of life, early detection may also make it possible for the patient to avoid more invasive and painful types of treatment, such as chemotherapy and radiation. It also may save the patient thousands of dollars in uncovered medical expenses.

How Does Misdiagnosis Happen?

Misdiagnosis can happen for a number of reasons. The physician may lack the specialized knowledge to recognize the signs of the disease. A general practioner may fail to order the correct types of tests to detect the cancer. A primary care physician may fail to refer a patient to the appropriate specialist or may delay in making the referral. A specialist may not take a proper tissue sample for the biopsy, resulting in bad test results. A radiologist may misinterpret or misread the biopsy test results.

Misdiagnosis also can occur when a doctor diagnoses a patient as having cancer when the patient does not. The patient then may be subjected to unnecessary and invasive treatments, including tests, chemotherapy, radiation and surgery. Although less common now, there have been breast cancer misdiagnosis cases in which women have undergone mastectomies for a disease they did not have. In other misdiagnosis cases, portions of the large intestine, lung and other organs have been wrongly removed. A recent lawsuit was filed in Manhattan by a 28-year old personal trainer, who was told, after biopsy testing, the he had breast cancer, which required immediate removal of his entire right breast and three lymph nodes. Three (3) weeks after the surgery, which is alleged to have produced significant disfigurement and scarring, the patient was told that he never had cancer and that his misdiagnosis was based upon a reading of a breast tumor biopsy specimen from a female patient. This story was reported in the New York Daily News, WPIX-TV and on A.O.L. - News.

When Does Misdiagnosis Become Medical Malpractice?

Not every cancer misdiagnosis will rise to the level of medical malpractice. Generally, medical malpractice occurs when a physician fails to meet the standard of care accepted in the community and, as a result, the patient is harmed. In cancer cases, it must be shown that the physician deviated from the accepted standard of care required for testing, examining, referring and/or diagnosing the patient.

Further, the misdiagnosis or delay in diagnosis must have caused a different and/or more extensive harm to the patient than that caused by just having cancer. This is known as the proximate cause requirement in misdiagnosis and delayed diagnosis cases. Proving that the misdiagnosis and/or the delay in diagnosis substantially affected the patient's condition requires the use of medical experts, including oncologists, to demonstrate how the doctor's actions, or inactions, significantly altered the patient's condition or chance for recovery.

Additionally, whether the doctor's actions deviated from the accepted standard of care is determined based on the knowledge available to the doctor at the time of the misdiagnosis. For example, if a 45-year-old woman with a history of breast cancer in her family sees her physician complaining of breast tenderness or lumps, based on the patient's history and current symptoms, the physician should consider the possibility of breast cancer and order the correct tests.
The physician cannot, however, be held legally liable for misdiagnosis if the patient presents abnormal symptoms or no symptoms at all and it is later discovered the patient has cancer.

Whether or not the doctor breached the standard of care can also depend on how much time passed between the misdiagnosis and diagnosis. Depending on the type of cancer, a few months may be sufficient. For other types of cancer, however, the lapse in time may need to be 6 months or greater.

How Can a Lawyer Help Me?

Attorneys experienced in handling medical malpractice cases can help patients enforce their rights and receive fair compensation for their injuries stemming from a cancer misdiagnosis and/or delayed cancer diagnosis. Medical malpractice lawyers will consult medical experts to determine the extent of the patient's injuries and the potential scope of their recovery.

Some of the damages that may be available in cancer misdiagnosis and/or delayed cancer diagnosis cases include:

. Past and future medical expenses
. Lost wages
. Loss of earning capacity
. Disfigurement
. Pain and suffering

By pursuing a medical malpractice claim, victims of misdiagnosis can find answers to their treatment questions, can attain a level of mental and emotional closure in their lives, can help bring awareness to the issue and can help protect other patients from a similar outcome. A lawsuit cannot cure the patient, cannot give back the time the patient has lost, nor can it help him or her receive a better treatment outcome. However, it can help people who have been the recipients of substandard medical care receive the monetary compensation they are due under the law for the injuries they have suffered.