Negligent delays in diagnosing lung cancer are a common form of medical malpractice, which almost always cause pain, suffering, disability, and often death. A timely lawsuit can provide necessary medical treatment, which may prolong the patient’s life and provide compensation to the victims. Medical malpractice is an epidemic with between 200,000 and 400,000 Americans dying annually from carelessness and negligence. The single most effective way that this epidemic of medical negligence can be controlled is by exposing this negligence, by holding the health care providers and corporations accountable, and forcing them to pay for the unnecessary injuries and deaths which result. Forcing careless hospitals and doctors to be accountable and to pay for the injuries they cause improve how other patients are treated and prevent similar injuries.
The Law Office of Kenneth C. Chessick, MD has been privileged to represent victims of medical negligence, to obtain well-deserved compensation, and to improve treatment provided. When the diagnosis of lung cancer is negligently delayed, the victim is deprived of being cured, and results in their suffering, disability, and sometimes death. Two real life cases of negligent delays in diagnosing and treating lung cancer illustrate the legal process which provides compensation to the victims, accountability and closure, and justice. In both cases, the symptoms of lung cancer were ignored, in one for eight months and the other for two years before the lung cancer was diagnosed and finally treated. In one case, a radiologist carelessly issued a report that the man with lung cancer’s chest x-ray was normal, when the radiologist and hospital confused him with a normal chest x-ray of a woman. A simple checklist procedure to prevent this confusion would have saved this man’s life. In the other case, the doctor’s simply taking the time to listen to his patient would have save the lady’s life.
CASE #1: CHEST X-RAY MISREAD, COUGHING UP BLOOD IGNORED
When I was a teenager, my mother taught me the importance of a simple checklist, a grocery list, when she sent me shopping for groceries to prevent my forgetting something. Medical negligence is the careless failure to act by the doctor in a reasonably careful manner which results in an injury. A doctor’s using the wrong patient’s name when reporting on an x-ray is an inexcusable negligent act. Not identifying the correct patient’s name makes that report unavailable to the patient who needs it. This sloppy, careless act can only occurs because doctor is not paying attention to his job and because the hospital does not have a simple checklist procedure to prevent or catch the negligent act.
My client, Mr. Keith, suffered and died because of this inexcusable negligence. A 55 year old male smoker, Mr. Keith complained to his family doctor, Dr. FP, whom he trusted, that he was coughing up blood. Coughing up blood by a smoker is always a serious issue and must be treated as “cancer until proven otherwise.” Dr. FP ordered a chest x-ray at his hospital. The chest x-ray was negligently reported by the hospital radiologist, Dr. HR, as “a normal chest x-ray,” despite his actual x-ray which showed a highly curable lung cancer. Dr. HR was busy, rushed, or distracted when he interpreted Mr. Keith’s chest x-ray. Dr. HR and his hospital had no checklist system to ensure that Dr. HR correctly identified that x-ray he was reading belonged to the same patient. Dr. FP, upon receiving the “ normal chest x-ray” report, did nothing further to determine the cause of Mr. Keith’s coughing up blood, did not view Mr. Keith’s x-ray film himself, and did not discuss the chest x-ray with Dr. HR. Dr. FP falsely reassured Mr. Keith that he had nothing about which to be worried and his repeated concerns over the next eight months were unfounded. Dr. FP prescribed cough medicine over the next eight months, which Mr. Keith’s coughing up blood continued unabated. Dr. FP chided Mr. Keith for being an alarmist, but upon Mr. Keith’s insistence, Dr. FP finally ordered a CT Scan of the chest, which showed Mr. Keith’s Stage IV lung cancer, which had now advanced, spread to his bone, and became incurable.
In reviewing the prior chest x-ray done eight months earlier, Dr. HR discovered that he carelessly dictated a woman’s normal chest x-ray using Mr. Keith’s name. Dr. HR had multiple clues to that he was not dictating Mr. Keith’s chest x-ray, including that the chest x-ray was of a woman with easily visible breasts, and moderately obese, while Mr. Keith, a male, was tall and slim. Neither Dr. HR, nor his hospital, had any procedural safeguards to prevent mixing up patient’s names. They trained their personnel poorly and had no quality control procedures to detect identity errors. A simple checklist procedure to confirm the patient’s identity, similar to that used by nurses in operating room at that same hospital, and no more complex than a grocery shopping list, would have avoided this careless neglect and would have prevented Mr. Keith’s suffering, disability, and painful death. Mr. Keith lived for another two years with severe bone pain, anguish, and disability. He is survived by his wife of 35 years and his children, who suffered with him.
The Lawsuit: Mr. Keith vs Dr. HR, Dr. FP, and Hospital
Following his death, Mr. Keith’s wife contacted me, and we filed the case, which was defended vigorously by the defendants and their insurance companies, as virtually every medical malpractice case is defended. The three defendants (Dr. HR, Dr. HP, and the Hospital) all denied that they were negligent. We retained multiple expert witnesses to prove our case. A family practice doctor expert testified that Dr. FP was negligent because Mr. Keith’s coughing up blood is always abnormal and required intensive investigation, particularly because of his history of smoking. The cause of Mr. Keith’s coughing up blood must be determined, and stopping after a negative chest x-ray report is not reasonable. Other tests, including an examination of what he was coughing and a CT scan of the chest, were required and negligently not done. Our radiologist expert witness testified that Dr. HR was negligent in dictating a report on Mr. Keith while describing the findings on another, normal, female patient, and that Dr. HR and the Hospital negligently did not have a checklist to prevent confusing patients and to identify when such carelessness occurs. An oncologist expert testified that during the eight month window, the cancer grew unabated and the likelihood of cure diminished. Each defendant retained expert witnesses to disagree with every opinion of our experts. On the eve of trial four years later as we picked a jury, the case settled for an amount in excess of $2 million, which provided much needed compensation to Mr. Keith’s struggling wife and children and avoided further legal wrangling and delay, which would likely include an appeal.
CASE #2: PERSISTENT COUGHING IGNORED
While I was a sophomore in medical school in 1965, I was taught, “Listen to the patient; she will tell you the diagnosis,” and “90% of diagnoses are made by taking a careful history and doing a thorough examination.” In delay in diagnosis of lung cancer cases, the negligence is usually the doctor’s ignoring serious symptoms, sometimes present for years. Lung cancer is a disease which afflicts both men and women. 63 year old Mrs. Beth was treated for three years with repeated episodes each year of a productive cough and fever. Mrs. Beth, a non-smoker, lived for years with her husband who smoked, and she was exposed to “second-hand smoke.” Dr. INT, her internist, negligently treated each episode as if the other episodes did not occur, never questioned why she had twelve office visit in three years just for her persistent, unrelenting cough, and ignored her high risk status for lung cancer. He did not review Mrs. Beth’s medical chart and did not listen to her complaints of repeated, unexplained episodes severe enough to require a visit to Dr. INT. He chose to not order any tests to investigate possible lung cancer. For the next three years, Dr. INT negligently chose to not order a chest x-ray, CT scan, or even a sample of what she had been coughing up to see if cancer cells might be present. On the tenth office visit and after insistence by Mrs. Beth, Dr. INT finally ordered a chest x-ray and then a CT scan of the chest. Advanced, Stage IIIA lung cancer was diagnosed and treatment begun. Mrs. Beth underwent a major surgical operation which removed the lung cancer and received postoperative chemotherapy. Because of its advanced stage, the anticipated cure rate for similarly advanced cancers dropped from 90% to less than 15%.
Mrs. Beth vs Dr. INT
Mrs. Beth, a charismatic, intelligent woman, consulted me, and we filed a lawsuit against the internist, Dr. INT, which was again vigorously defended by the doctor and his insurance company. Our expert witness internist testified that Mrs. Beth’s repeated episodes of productive coughing within such a short period was abnormal and required intensive investigation by Dr. INT, particularly because of her history of exposure to second-hand smoke. Our expert oncologist testified that simple testing with a chest x-ray and examination of the material she coughed up would have diagnosed the lung cancer years earlier. The cancer had been present for at least four years prior to causing symptoms, and had it been treated years earlier, the likelihood of cure would have been in the 90% range, instead of the 15% now present. At the time of the trial, Mrs. Beth had no obvious evidence of recurrence.
Dr. INT and his insurance company retained expert witnesses to disagree with every opinion of our expert. According to the Dr. INT’s experts, no investigation of her symptoms was warranted, and Mrs. Beth’s lung cancer either was always incurable, or conversely, she was cured with no evidence of recurrence. The defense experts had no difficulty testifying under oath that Mrs. Beth was either cured or was always incurable. Time was obviously precious for Mrs. Beth, and we sought and were granted an expedited trial. During the three week trial when it became obvious to the insurance company that the jury did not believe Dr. INT’s experts and their inconsistent, contradictory testimony, Mrs. Beth’ case settled for $1.5 million. Mrs. Beth enjoyed the remaining two years of her life until her death from metastatic lung cancer. Mrs. Beth had the satisfaction of financially providing for her two daughters after her death and holding Dr. INT accountable for his negligent failure to “listen to the patient; she will tell you the diagnosis.”
JUSTICE CAN BE ELUSIVE WHEN SUING A DOCTOR
Holding a doctor or corporation liable for the consequences of its negligence is always difficult. The potential jury pool, which includes almost all of us, is inundated with propaganda from corporations and insurance companies which falsely suggest that the victims of medical negligence lawsuits are the defendants, not the ordinary, trusting people injured. The reality is that under the law, doctors are treated as a “special class,” to the detriment of their victims. Special laws exist for holding doctors responsible for the injuries caused by their negligence, which create hurdles and obstacles not present for holding ordinary people liable for their negligence. These laws make filing and prosecuting medical malpractice cases more difficult and more expensive to hold negligent doctors accountable than in other personal injury cases. In Illinois and many states, to even file a lawsuit against a doctor or medical corporation, the injured patient must attach a letter from a doctor who has reviewed the records and who attests that medical malpractice which caused the injuries or death occurred. Such a review is expensive, often costing $1,500 or more. These requirements do not exist when suing a careless driver, even if that driver was the same doctor. Doctors get special treatment under the law.
The hundreds of millions of dollars spent by corporations and insurance companies on propaganda to influence potential jurors have had their effect, and jurors are sympathetic to doctor defendants. We need our doctors, and jurors sometimes identify with the defendant doctors, particularly if the juror has a doctor he/she likes. Acknowledgment of a physician’s carelessness is threatening to us all, and some jurors distance themselves from the medical malpractice by denying its occurrence. Achieving justice for victims of medical malpractice requires understanding this dynamic is often at work during a trial. In my experience, when a jury finds a doctor liable, the evidence is usually overwhelming.
JUSTICE REQUIRES STRICT PROOF
In order to prevail in a medical malpractice lawsuit, the victim must prove that the doctor or corporation breached the standard of care, that he/she was injured, and that the breach in the standard of care was a proximate, contributing cause of the injury. In Mr. Keith’s case, all three defendants were negligent, including the Dr. FP, family doctor, Dr. HR, the radiologist, and the Hospital. Dr. HR, the radiologist who switched the names of patients on the report, breached the standard of care and did not act like a reasonably careful radiologist. The Hospital defendant breached the standard of care by not having systems and procedures to prevent confusing patient names. The Hospital defendant was responsible for the actions of Dr, RAD, who was an apparent agent of the Hospital defendant. Finally, Dr. FP, the family practice doctor, was negligent in not repeating the chest x-ray, not ordering a CT scan, in not consulting with a specialist for Mr. Keith in a timely fashion, and for ignoring Mr. Keith’s pleas for help. The negligent acts and omissions caused a long delay in the treatment of Mr. Keith’s cancer, during which time the cancer became incurable.
In Mrs. Beth’s case, Dr. INT, the internist, was negligent for ignoring Mrs. Beth’s persistent, recurrent symptoms for more than three years without simple diagnostic tests, including ordering a chest x-ray, collecting and microscopically examining the coughed up sputum, or consulting with a specialist. Simply prescribing antibiotics without determining the cause of Mrs. Beth’ symptoms, a lady who was at increased risk for lung cancer because of her exposure to second-hand smoke, was not what a reasonably careful internist would do in these circumstances. The unnecessary delays in treatment robbed both Mr. Keith and Mrs. Beth of their chance to be cured of their lung cancers, and as a result, the cancers grew untreated and both died from the defendants’ negligence.
DOCTORS AND INSURANCE COMPANIES ALWAYS DEFEND VIGOROUSLY
Delays in paying for the death of the patient due to negligence always benefit the negligent doctor and his insurance company. Juries almost always award more compensation to the alive victim, who can personally benefit from the award than to the victim’s heirs. Defendant doctors, hospitals, and insurance companies always vigorously defend “failure to diagnose lung cancer” cases and delay settlement for as long as possible. Regardless of how egregious the doctor’s conduct, defendant doctors and their insurance companies virtually always find an expert doctor who support their defense. Some defense doctor experts will defend almost any careless conduct. Only a doctor can testify in court as to what a reasonably careful doctor should do in the same or similar circumstances, otherwise known as the “standard of care.” No matter how obvious, a layman is not permitted to testify to the standard of care of a doctor, even something so evident, as in Mr. Keith’s case. Dr. HR, the hospital radiologist, admitted dictating that the report that Mr. Keith’s chest x-ray was normal even though Mr. Keith’s original chest x-ray showed the cancer, yet he testified under oath that he complied with the standard of care, because “mistakes can happen.” The law required Mr. Keith and us to retain an expert radiologist witness to testify to the obvious: a reasonably careful radiologist should dictate the correct report on the correct patient. Only a doctor is permitted to testify that a delay of diagnosis and treatment for eight months or three years reduced the chance of Mr. Keith or Mrs. Beth of being cured.
“BLAME THE VICTIM”
A favorite tactic in defense of the negligent doctor is to “blame the victim,” even though doctors are in the business of treating people who have disease. In lung cancer cases where a history of smoking is often present, the “blame the victim” defense tactic is frequently employed, even though the law instructs the jury, the experts, and the attorneys that lifestyle choices are not a defense to a doctor’s negligence. The negligence is not that the doctor caused the cancer, but that he prevented the cancer from being cured. The doctor’s negligence always occurs after the lung cancer has developed. A history of smoking can never cause a negligent delay in the diagnosis and treatment of the lung cancer. Only the negligence of the doctor or corporation can cause the delay.
Notwithstanding the law, some defense attorneys insinuate that the victim is really at fault, especially in lung cancer cases. Some defense attorneys use the same “blame the victim” tactic when the victim has other health issues, including obesity, diabetes, high blood pressure, or a family history of heart attack or cancer. Sometimes the “blame the victim” tactic is used when the victim is of color, foreign born, or other religion and appeal to conscious or unconscious prejudices.
THE “SO WHAT” DEFENSE
Another favorite defense in failure to diagnose lung cancer cases is a defense expert’s testimony that the delay was harmless; “so what” if the doctor was negligent. This “so what” defense was asserted in Mr. Keith’s and Mrs. Beth’s cases. The defendant doctors and their insurance companies defended by alleging that the lung cancer had already become metastatic and therefore, even if the defendant breached the standard of care, the cancer was already incurable. In Mr. Keith’s case, the delay between the negligence and the lung cancer diagnosis was eight months, during which time no treatment given to cure the cancer. In Mrs. Beth’s case, the delay in the window of treatment was more than two years. During these delays, their untreated cancers grew in size and shed cancer cells which lodged in other areas of their body. In most states, negligent conduct which deprives the patient of the chance of cure is an injury which deserves compensation by the doctor. This legal defense is not recognized in the actual practice of medicine. Even when the treatment is likelihood to achieve a cure is less than 50%, doctors virtually always recommend treatment, because saving the lives of even less than 50% of the patients with cancer is a worthwhile goal.
JUSTICE CAN PREVAIL
Recovering compensation in a failure to diagnose lung cancer case is always a difficult challenge. We have successfully represented many victims of this medical malpractice and obtained justice for many. I practiced as a general and thoracic surgeon for forty years and am certified by the American Board of Surgery. I have treated and cured many patients with lung cancer. As a trial lawyer since 1984, we have obtained many record verdicts and settlements for my clients in medical malpractice cases. Because of my intimate knowledge of both the law and medicine, we have been privileged to achieve justice to many victims of failure to diagnose cancer and other medical malpractice.
If you were a victim of medical malpractice, particularly involving a “failure to diagnose lung cancer,” no matter where it occurred, call me. If we take your case, you may recover substantial compensation for your injuries and those to your family. We never charge a fee unless we recover on your behalf. Email me, Kenneth C. Chessick, MD, JD, at [email protected] or call me at 847-843-8044 to discuss your case.
Note: This blog is written to educate people on the principles of medical malpractice litigation. Names, dates, and facts were changes for reasons of privacy. Every statement is an opinion based on the experience of Kenneth C. Chessick, MD, JD. Every case is different and must be evaluated on its own facts. No guarantees are implied or made. Copyright 2014
