Negligent Cancer Screening in New Brunswick May Lead to Criminal Charges and Medical Malpractice Claims
A New Brunswick doctor faces potential criminal charges and possible liability for medical malpractice as a result of an investigation into negligent cancer screening.
Pathologist Dr. Rajgopal S. Menon was suspended by New Brunswick’s College of Physicians and Surgeons last year after a complaint from the regional health authority that he put patients at risk by missing instances of cancer following evidence of negligence in breast and prostate cancer biopsies performed by Menon in 2004 and 2005.
The latest review is going to include 15,000 cancer screening tests performed by the doctor stretching all the way back to 1995.
The Canadian Press reported that Health Minister Mike Murphy has asked the RCMP to determine if there was criminal negligence in the doctor’s handling of the tests:
“It’s as serious as it gets,” Murphy told a news conference in Fredericton.
“It is very difficult to speculate as to whether anyone has lost their life, but it would not be unlikely. . . . We do know of a number of cases where he completely missed the diagnosis and rendered it benign when in fact it was malignant.”
If the doctor’s faulty test results caused a misdiagnosis of cancer, a delay in receiving proper treatment, or death as a result of misdiagnosis Menon is sure to be facing claims from cancer victims seeking compensation for medical malpractice.
The problem is that the time limit in New Brunswick for filing claims for medical malpractice is two years from the date of the negligent act. If the misdiagnosis took place more than two years ago, where does that leave cancer victims’ and their families?
The answer may be found in the decision of the Supreme Court of Canada in Novak v. Bond and the Ontario Court of Appeal in Urquhart v. Allen Estate.
Novak v. Bond:
The plaintiff Ms. Novak sued Dr. Bond as a result of his failure to diagnose her breast cancer at an earlier date. By the time her breast cancer was diagnosed in 1990, the cancer had spread to at least 12 of Ms. Novak’s lymph nodes. She was aware in 1990 that the spread of cancer to her lymph nodes increased chances of recurrence. She decided to concentrate on maintaining her health rather than commencing a stressful legal action. Her cancer reoccurred in 1995 as cancer of the spine, liver and lung.
In 1996, she sued the defendant Dr. Bond for medical malpractice. The trial judge found Ms. Novak was aware of the facts necessary to file a claim when she discovered that cancer had spread to her lymph nodes and dismissed her claim as being statute-barred (out of time).
Novak appealed. The Supreme Court of Canada eventually ruled that Ms. Novak was reasonable in deciding that it was in her best interest not to sue but to devote herself to recovering her health and there was sufficient authority to take her out of the two-year limitation period.
Urquhart v. Allen Estate
Ms. Urquhart’s breast cancer was misdiagnosed by her surgeon and the radiologist that reviewed her mammogram. She filed a claim against the radiologist after her time limit had run out. The radiologist applied to the court to have the claim against him struck out. The court ruled that a medical opinion was necessary for Ms. Urquhart to know whether to file a claim against her radiologist.
So what does this all mean to cancer victims in New Brunswick?
If they knew they had cancer but acted reasonably in focusing their efforts on recovery, based on the decision of the Supreme Court of Canada, a court is not likely to penalize them for missing a time limit to file a medical malpractice claim.
If they did not know they had cancer because of Menon’s misdiagnosis, and only learned later as a result of further testing, the time to file a claim is likely to be found to start to run when the cancer victim received further medical evidence showing that there was a misdiagnosis of their cancer.