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Is Failure to Diagnose a Form of Medical Negligence?


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Video Transcript

0:00 Intro
0:33 What Is Needed for a Medical Negligence Case?
1:56 Cancers That Respond Well to Treatment
2:48 Cancers That Are More Aggressive
3:56 Early Detection is Key

Well, the short answer as to whether failure to diagnose is medical negligence, the answer is, frequently yes. 

0:33 What Is Needed for a Medical Negligence Case?

Again though, the key is, you need all four prongs of that negligence equation that I mentioned earlier. You have to have duty, breach, causation, and damages.

If you have all of those, then yes, that particular failure to diagnose is negligence. All of us I think understand particularly just as a hypothetical, the area of oncology or cancer, probably since most of us were young, we’ve heard at least as to cancer, that, you know the key is early diagnosis. And as an individual with over 55 years of medical and legal experience, I hate to admit that I’m that old, but I am. The ability to pick out an issue with a cancer that would have led to a much better outcome had a patient been timely diagnosed is very important.

As many of our listeners may realize, some cancers are extremely treatable. They do very well, usually with early detection, radiation, chemotherapy, surgery. These patients almost virtually always have a good outcome.

1:56 Cancers That Respond Well to Treatment

One example would be most skin cancers, most thyroid malignancies, testicular malignancies, and men tend to be very responsive to treatment these days.

These are cancers where a failure to diagnose may not make a great difference, and although again, there may have been an error in not diagnosing timely, unless there are damages, there is no negligence.

So, tumors that are relatively benign, again the three I mentioned were most skin tumors, thyroid cancer, testicular cancer, and most breast cancers now in women, are readily treatable with a good outcome short of just a completely unreasonable delay.

2:48 Cancers That Are More Aggressive

Now with that said, there are other malignancies. Particularly pancreatic cancer, esophageal cancer, some very aggressive colon cancers, prostate cancers, that if you don’t diagnose them early, the difference really can be a life or death type of difference.

So again, an early pickup in the area of oncology is frequently of significant benefit to the patient. And if that early pickup is not or has not occurred for some reason, then again, that can make all the difference in the world, and again if damages are present, there’s no question that’s medical negligence.

Right. I think what’s fair to say is there just are certain cancers that are very aggressive. I named esophageal, I named pancreatic, I named some colon cancers, some prostate cancers, although many prostate cancers are very slow-growing and not aggressive.

3:56 Early Detection is Key

I also need to add central nervous system malignancies, brain tumors. Again early detection is the key, and really failure to diagnose is going to be a much more grave error when an individual has a more aggressive, less readily easily treatable cancer than if they have a less aggressive, more readily treatable cancer.

So, clearly in the area of malignancy, failure to diagnose is extremely important with aggressive tumors.

Well failure to diagnose, in other words, let’s just put it this way. A timely diagnosis, a diagnosis made early, is particularly important with very aggressive cancers. Obviously, although it’s not unimportant, it’s a little less important for cancers that are slow-growing or that tend to respond to treatment regardless of how advanced they are.



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