Massachusetts loss of chance doctrine: Delay in cancer diagnosis

The legal theory looks at the monetary value of the lost chance of recovery or survival from the delay in diagnosis.

It is a heartbreaking scenario. A doctor fails to adhere to accepted standards of care and misses the chance to treat cancer at a potentially treatable stage. After this failure to diagnose and treat, or even misdiagnosing the disease, the cancer advances to a later stage at which treatment will likely not be successful.

This can happen when a physician or other medical professional fails to conduct appropriate testing, examination or follow up in response to the symptoms and signs a patient displays. Examples of this mistake could include:

  • A doctor does not order a colonoscopy or other routine colon or rectal cancer-screening procedures in response to blood in the stool or other symptoms like bowel problems, pain and weight loss.
  • A medical professional fails to order mammograms for a patient with a family history of breast cancer or does not perform a biopsy of a lump in the breast when called for.
  • A physician fails to properly evaluate a suspicious spot on the skin that turns out later to be advanced melanoma.

Loss of chance doctrine

A legal theory of liability in these kinds of cases is the loss of chance doctrine that specifically looks at whether a physician is liable because of negligent treatment that reduces the patient's chance of surviving the cancer in question. The negligent treatment is the delay in cancer diagnosis because of having failed to order the correct tests or conduct the appropriate examination, for example. Money damages would be available in a medical malpractice case based on the lost chance to recover from the cancer or even to receive treatment that would have increased the chances of survival or prolonged life.

Massachusetts cases have expanded on the loss of chance theory of recovery in medical malpractice claims. In the leading 2008 case of Matsuyama v. Birnbaum, the court explained that damages are awarded in this kind of recovery for "the diminished likelihood of achieving a more favorable medical outcome." The court explained further that the injury is the loss of the "great value" of the "chance to survive, to be cured, or otherwise to achieve a more favorable medical outcome."

Anyone who has experienced a delay in diagnosis of cancer should speak with a medical malpractice attorney about the potential for legal recovery under the loss of chance doctrine or other appropriate basis.

The attorneys of the Newton, Massachusetts, law office of Law Doctors Barry D. Lang, M.D. & Associates have doctors and nurses on staff to assist in representation of patients and their families suffering from medical negligence in the Boston area and throughout the state.