My sister passed away from cancer about three months ago. She had regular check ups with her doctor, but she was only told this year she had cancer. She died within six months of her diagnosis. I wanted to know if I could sue her gynecologist for failure to diagnose and treat her breast cancer?
I am so sorry for your loss. But like most medical malpractice cases, it is difficult to give a simple answer. Although generally, catching cancer early is the best way to put the disease into remission (or possibly cure the patient), there are certain types of cancer that are more aggressive than others. The type of cancer your sister had, what the gynecologist knew, and when he knew it are important.
In a prior post about medical malpractice, we discussed the plaintiff must show the doctor deviated from the acceptable standards of care. However, there is another important element of a medical malpractice case. The plaintiff, in a medical malpractice case, must prove not just a deviation from acceptable medical practice, but must show a proximate cause between that deviation from acceptable care and the damages. Evans v Holleran, 198 AD2d 472, 604 NYS2d 958 (2d Dept 1993); Rivera v Bebbington, 94 AD3d 408, 941 NYS2d 1387 (1st Dept 2012), affd, 20 NY3d 945, 958 NYS2d 319, 982 NE2d 81 (2012).
Proximate Cause
So it is not enough to show that the gynecologist failed to timely diagnose your sister. You must show that if the cancer had been more quickly diagnosed, then your sister might have had a much better chance of living a long life.
There are many different types of breast cancer. Some breast cancers are slow growing and the prognosis is very good for those patients. Patients can many times be treated surgically and undergo treatment after surgery. Those patients will go on to live normal lives. Other breast cancer, like metaplastic breast cancer, are very aggressive and metastasize quickly. Those patients have a poor prognosis.
So without reviewing records, it is impossible to say if there is a case for your sister. But if she had an aggressive cancer, then there would be nothing her gynecologist, or any other doctor for that matter, could do to treat her condition. Then in those circumstances, there would be no case.
By James Santner, Esq.
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