Janet Keane

When filing a lawsuit against another party, the patient or patient’s family is referred to as the plaintiff. The doctor or other party in question is referred to as the defendant. A cancer misdiagnosis lawsuit may be filed against any party responsible for the cancer misdiagnosis, such as a doctor nurse, pathologist, or any entity to include the hospital in question that employs the responsible personnel.

Any medical negligence case can be complex and time-consuming. When patients believe that medical negligence was the cause of their cancer misdiagnosis, the patients and their families should seek the legal assistance of a specialist lawyer who can review the case’s facts, file a claim, and follow-through with the legal process.

Cancer misdiagnosis case elements

As with any medical negligence lawsuit, the plaintiff holds the burden of proof in a cancer misdiagnosis case. This means that the plaintiff is responsible for providing sufficient evidence by way of expert medical reports that the defendant is guilty of the allegation(s) made by the plaintiff. The standard in relation to the burden of proof in Ireland is that negligence and causation are proved “on the balance of probabilities”. In order to do this, the plaintiff must prove basic elements that establish a medical negligence lawsuit.

The plaintiff must prove that:

• There was a “doctor-patient” relationship
• The doctor acted negligently, which led to the cancer misdiagnosis
• The doctor’s negligent cancer misdiagnosis caused harm to the patient
• The patient’s cancer misdiagnosis harm resulted in loss to them in relation to both pain and suffering for which general damage are recoverable and actual specific monetary loss for which special damages are recoverable.

Doctor-patient relationship

If the defendant is a doctor, the plaintiff must first prove the existence of a doctor-patient relationship. This means that the doctor was “hired” by the patient through an agreement from both parties. When a doctor-patient relationship is established, the doctor accepts legal responsibility for providing the patient with a certain level and standard of care. If a proper doctor-patient relationship was never established, the plaintiff’s case may not have legal standing. In cancer misdiagnosis cases where the defendant is not a doctor, the same principle applies.

Doctor negligence

The plaintiff must then prove that the doctor or party acted negligently during treatment of the patient. The test for the proving of Medical negligence in Ireland is whether a Doctor has been proven to be guilty of failure that no medical practitioner of equal specialisation or general status and skill would be guilty of if acting with ordinary care and that no medical practitioner of like specialisation and skill would have followed his actions had they been taking the ordinary care required from a person of his qualifications.

In order to prove negligence, the doctor’s actions will be examined to determine if the doctor met the industry’s standard of care. The standard of care is the level care that all patients are reasonably expected to receive. This is typically assessed by comparing the actions of the doctor to the actions of another doctor with similar skill, knowledge, and specialization. And irrespective that care must not be shown to have inherent defects.

Patient injury and damages

Once the doctor’s negligence has been established, the plaintiff must prove that the negligent action in question was the cause of the patient’s harm. The patient’s harm must be able to be classified as certain types of legal damages. Damages are classified as economic (special), non-economic (general), and punitive.

Cancer misdiagnosis damages may include:

• Additional past and future medical bills
• Lost wages due to missed work
• Lost earning capacity due to disability
• Pain and suffering
• Loss of quality or enjoyment of life
• Loss of consortium, or loss of companionship

Proving cancer misdiagnosis

In a cancer misdiagnosis lawsuit, the plaintiff must be able to prove that the cancer misdiagnosis occurred as a direct result of the negligence of the doctor or other party in question. This is an important step of the legal process, as cancer misdiagnosis can occur despite full competency and attention from the treating doctor. Proving that the doctor’s negligence led to cancer misdiagnosis is often a difficult and complex process.

The plaintiff may have a cancer misdiagnosis case if:

• The doctor failed to identify symptoms that were reasonably apparent, and thus would have been identified by a similar doctor
• The doctor failed to order the appropriate cancer testing, despite the presence of certain symptoms that would cause a similar doctor to order testing
• The doctor did not use proper protocol or procedure when conducting cancer testing, leading to errors in the test results
• The doctor disregarded laboratory recommendations to conduct additional testing based on the results of a test, such as a tissue sample biopsy
• The testing laboratory failed to identify or analyse abnormal cell activity, such as abnormal growth patterns in a tissue biopsy
• The doctor or hospital failed to follow up on outstanding test results

Cancer misdiagnosis medical negligence claims time limits

If a person wishes to pursue a medical negligence claim they have two years from the date of the incident giving rise to the claim or the date of knowledge i.e. when the injured person first learnt that his/her injury was related to the clinical negligence event.

• Janet Keane is a senior associate at Callan Tansey Solicitors LLP.