Delayed Cancer Diagnosis Can Give Rise to a Medical Malpractice Claim in Canada

by John McKiggan

It’s scary to hear the words, “You have cancer.” But the distress and concern of worrying about your health can be compounded by the realization that the diagnosis was delayed, allowing the cancer to grow and spread.

A delayed cancer diagnosis can give rise to a medical malpractice claim. This type of claim, however, faces many challenges that malpractice lawyers and their clients should be aware of.

Many Canadians will face a cancer diagnosis at some point

The Canadian Cancer Society reports that 2 of 5 Canadians will develop cancer in their lifetime, and that 1 of 4 will die from cancer.  Since the 5-year survival rate of someone with cancer is about 63% (it varies according to the type of cancer) a missed or delayed diagnosis means that a patient may have missed a lifesaving opportunity for treatment.

Earlier Diagnosis =  Better Results

TNM - Stages of Cancer Graphic related to Delayed Cancer DiagnosisGenerally speaking, if one is diagnosed early, there is a greater chance of survival. But, what if a medical practitioner acts negligently in determining the health of a patient? There may be grounds for a medical malpractice claim if a doctor’s unreasonable delays in diagnosing cancer mean the patient loses the opportunity for effective medical care.

You Cannot Sue for “Loss of Chance” in Canada

Medical malpractice claims relating to a delayed diagnosis face many hurdles in Canada. Americans plaintiffs can try to show that a physician’s delayed diagnosis reduced their chances for successful treatments, by some percentage. Say a plaintiff in the U.S. claims that a delayed diagnosis reduced the chance of successful treatment by 20%. The plaintiff, then, can try to sue for 20% of potential future losses. This is called “loss of chance”. You cannot sue a medical practitioner for “loss of chance” like one could in the United States.

Burden of Proof in Cancer Claims

A plaintiff in Canada must show more than just a possible loss of chance. Plaintiffs in this country have to prove, on the balance of probabilities, that an earlier diagnosis would have changed the outcome of treatment. Meaning that they would likely not have experienced the loss had they been diagnosed earlier.

While difficult to prove, there are several ways plaintiffs and their medical malpractice lawyers can show that a missed or delayed diagnosis caused enough harm to win damages in a cancer misdiagnosis case.

Showing Causation

Cancer misdiagnosis claims in Canada must begin with the plaintiff proving causation, which means certain circumstances need to be established, on the balance of probabilities, through examination of legal and medical issues. These circumstances include:

  • Cancer was present when the doctor examined the patient;
  • The standard of care required that the patient should have received a cancer diagnosis earlier;
  • The patient’s outcome probably (not possibly) would have been more favorable with the early diagnosis

Considering Treatment

Cancer is usually treated by removing any tumorous masses, and treating remaining cells through various types of therapy including radiation or chemotherapy. A person is considered cured of cancer when a period of 5 subsequent years shows no cancerous cells.

Statistics show that the earlier a person is treated (which means the cancer must be identified), the better chances there are for cure or recovery.

Defending Cancer Claims

Defending legal counsel in a cancer claim will typically argue that an earlier cancer diagnosis would not have resulted in cure or survival. A common defense includes arguing that a plaintiff’s cancer had already begun to grow and was in advanced stages, and that an earlier diagnosis would not have resulted in a different outcome.

This argument may be flawed, however, because the defence medical experts usually assume that the rate of cancer growth is predictable. We know that studies showing probably cancer growth rates are based on data from limited populations. So we cannot assume they are completely accurate. Still, if the cancer was already advanced, then why wasn’t the doctor able to properly identify it?

We help patients who have received a cancer misdiagnosis. Our attorneys have experience in medical malpractice claims relating to delayed cancer diagnosis, and we hope to offer some peace and assistance to those suffering. If you have questions about your diagnosis, we’d like to hear from you.

Want More Information?

For more information you can read my article: Misdiagnosis can lead to medical malpractice claims or you can contact us for a free copy of my book Health Scare: The Consumer’s Guide to Medical Malpractice Claims in Canada.

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare – The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on Amazon.com. All proceeds from book sales go to charity.

Free Copy to Blog Readers

But supporters who read this blog can contact me through this blog or call us toll free in Atlantic Canada 1-888-647-7201 and we will send you a copy at no charge.

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