Cancer Misdiagnosis FAQs

Cancer misdiagnosis includes more than a provider's complete failure to identify the disease. A false-negative diagnosis may occur when a physician or pathologist incorrectly concludes that suspicious tissue is benign. A patient may also be diagnosed with the wrong cancer type or subtype, leading clinicians to select treatment that is not suited to the actual disease. Incorrect staging can cause similar problems because treatment decisions often depend on whether cancer is localized, involves nearby structures, or has spread. A false-positive diagnosis occurs when a patient is told that cancer is present even though the abnormality is noncancerous. The patient may then undergo unnecessary procedures, medication, radiation, or surgery. The legal significance of any error depends on whether the provider departed from accepted medical practice and whether that departure caused harm.

Under New York law, a patient generally must prove that the defendant departed from accepted medical practice and that the departure proximately caused the injury. The patient must first identify what a reasonably competent provider should have done under the circumstances. The evidence must then show how the defendant's conduct fell short, such as by overlooking a suspicious image, misreading a biopsy, failing to order additional tests, or disregarding an inconsistent result. Causation requires more than proof that an error occurred. The patient must show that the mistake was a substantial factor in producing additional harm. In a delayed diagnosis case, that may mean showing that the cancer probably would have been found earlier and that earlier treatment would have offered a materially better outcome. In a false-positive case, causation may involve unnecessary treatment and its complications. Qualified medical experts ordinarily provide opinions on the standard of care, the departure from it, and the medical consequences.

When cancer is missed or mistaken for a benign condition, the disease may grow, invade nearby tissue, or spread to other parts of the body before effective treatment begins. A patient may lose the opportunity for a limited surgery and later require a more extensive procedure, systemic therapy, radiation, or prolonged treatment. Misidentifying the type or stage of cancer can lead to ineffective care while the actual disease remains untreated. A false-positive diagnosis can be equally disruptive in a different way. A person who does not have cancer may undergo surgery, chemotherapy, radiation, medication, or invasive testing without medical benefit. Treatment can cause pain, scarring, organ damage, infection, fatigue, emotional trauma, and other complications.

A patient may seek compensation for economic losses caused by negligent diagnosis. These losses can include the cost of unnecessary treatment, additional care required because the disease progressed, future medical expenses, rehabilitation, medication, counseling, lost wages, and diminished earning capacity. Non-economic damages may compensate for physical pain, emotional suffering, disfigurement, impaired bodily function, loss of enjoyment of life, and the distress of undergoing avoidable treatment or learning that a disease progressed during a preventable delay.

New York ordinarily requires a medical malpractice action to be commenced within two years and six months of the negligent act or omission or, when the legal requirements are met, the end of continuous treatment for the same condition. New York also has a special discovery provision for claims based on an alleged negligent failure to diagnose cancer or a malignant tumor. In qualifying cases, an action may be commenced within two years and six months of when the patient knew or reasonably should have known of the negligent act or omission and knew or reasonably should have known that it caused injury, subject generally to an outside limit of seven years from the negligence. The special rule does not necessarily govern every form of cancer misdiagnosis, and claims against public or government-affiliated providers may involve shorter deadlines and notice requirements.