My sister passed away from cancer about three months ago. She had regular check ups with her doctor. Her told her 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 deeply sorry for your loss. Losing a loved one so quickly after such a diagnosis is devastating. Asking whether medical malpractice played a role is a natural and necessary question.

Proximate Cause

In a prior post defining medical malpractice, I mentioned 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, must prove not just a deviation from acceptable medical practice. The plaintiff 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); Callistro v Bebbington, 94 AD3d 408, 941 NYS2d 1387 (1st Dept 2012), affd, 20 NY3d 945, 958 NYS2d 319 (2012).

So in failure-to-diagnose cancer cases, proving that the doctor made a mistake is often only half the battle. It is not enough to show that the gynecologist failed to timely diagnose your sister. Instead, 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.

The real legal battleground in New York almost always comes down to proximate cause.

Proximate Cause in Failure to Diagnose Cancer

In New York, establishing that a doctor was negligent is not enough on its own to win a medical malpractice case. You must also prove that the doctor’s failure to diagnose was a substantial factor in causing the harm or death.

When it comes to aggressive illnesses like cancer, this presents a unique hurdle:

  • Slow-Growing Cancers. If a doctor catches a slow-growing cancer early, surgical intervention or targeted therapies often result in long-term remission or a cure. A delayed diagnosis here often clearly changes the outcome.
  • Aggressive Cancers. Certain cancers (such as metaplastic breast cancer, stage IV pancreatic cancer, or aggressive glioblastomas) progress rapidly and have extraordinarily poor prognoses regardless of when they are detected.

If an aggressive tumor was already terminal or incurable at the time the doctor should have caught it, defense lawyers will argue that the patient’s death was caused by the disease itself. Therefore, they argue it was not the doctor’s delay.

The “Loss of Chance” Doctrine in New York

Because cancer prognoses exist on a spectrum, New York courts do not require a plaintiff to prove that an earlier diagnosis would have guaranteed a 100% full recovery. Instead, plaintiffs can pursue a claim under the Loss of Chance doctrine.

Under this doctrine, a doctor can be held liable if their failure to timely diagnose deprived the patient of a substantial possibility or chance for a better outcome, a prolonged life, or reduced suffering.

  • Deprivation of a Better Outcome. In Almonte v Shaukat, 204 AD3d 402 (1st Dept 2022), the court recognized a triable issue of fact where expert testimony showed that a 13-month delay in diagnosing breast cancer lowered the patient’s overall odds of survival by 13%.
  • Decreased Chance of Cure. In Borawski v Huang, 34 AD3d 409 (2d Dept 2006), causation was established because the physician’s delay reduced the patient’s likelihood of a long-term cure from 65–90% down to just 10%.
  • Prolonging Life and Reducing Suffering: In Neyman v Doshi Diagnostic Imaging Services, P.C. 153 AD3d 538 (2d Dept 2017), the court held that a plaintiff does not need to prove the patient would have been completely cured; showing that earlier intervention would have substantially improved the chances of prolonging life or lessening suffering is legally sufficient.

Evaluating A Failure to Diagnose Cancer Claim

To determine whether a failure-to-diagnose claim exists, an attorney cannot simply rely on the tragic timeline of events. Therefore, we must conduct an exhaustive review of the medical records alongside independent medical experts to evaluate:

  • The Tumor Biology: What stage and cell type was the cancer at the time of the missed opportunity?
  • The Medical History: Did previous screenings, mammograms, sonograms, or blood tests contain red flags that the provider ignored?
  • The Loss of Opportunity: Would initiating treatment months earlier have changed the staging, treatment options, or survival rate?

Because every cancer case hinges on intricate pathology, radiology, and timeline analysis, expert testimony is required to bridge the gap between a doctor’s oversight and the legal standard of causation.

Conversely, if the medical evidence shows that an earlier diagnosis would not have altered the clinical outcome or extended the patient’s life, the causation requirement is not met. As a result, the case cannot proceed. Candia v Estepan, 289 AD2d 38 (1st Dept 2001).

Speak with an Experienced New York Medical Malpractice Attorney

Evaluating a potential failure-to-diagnose claim requires both compassionate support and rigorous legal analysis. If you suspect that a delayed cancer diagnosis impacted your loved one’s chance of recovery or survival, our team is here to help review the facts.

By James Santner, Esq.

Contact Minchew & Santner, LLP today for a free, confidential consultation. We analyze medical records, consult with leading experts, and help families understand their rights under New York law. There is never a fee unless we win your case.