As we eagerly anticipate the restart of jury trials, it is useful to reassess our core thinking about malpractice cases in the wake of a global pandemic that has sharpened our collective focus on health care. How will juries respond to allegations of malpractice? Will juries expect more health care practitioners who have been appropriately exalted in the media or will juries be more apt to give health care professionals a pass when presented with allegations of wrongdoing? Undoubtedly the answer will be revealed in the coming months as malpractice cases find their way back into the courtroom.
It is anticipated that there will be approximately 86,000 new cases of cancer diagnosed this year in Pennsylvania. Particularly with late stage disease, many cancer patients will inevitably wonder whether an earlier diagnosis was possible. Friends and family inevitably weigh in resulting in an assessment and scrutiny of prior medical visits and test results. In situations where complaints that were frequently voiced to doctors turn out to be characteristic of the type of cancer diagnosed, legal counsel is frequently sought. As one-third of all malpractice cases involve diagnosis, and a sizable percentage of these cases involve cancer, it is important that we have an awareness of key considerations when contemplating this type of litigation moving forward.
We must never lose sight of the basics. As I see it, one of the most critical factors in predicting the trajectory of a malpractice case is case selection. It is no different in cancer litigation.
In this forum, there are few substitutes for experience. The stakes are typically high as a properly selected cancer case involves significant physical and mental hardship coupled with a substantial chance of premature mortality. Our clients depend upon us to painstakingly review and understand medical records, hire competent and ultimately persuasive experts, and invest significant sums of money in their cases. In many cases, the financial security of families hangs in the balance. Cancer litigation is not for the faint of heart.
I have long advocated a “damages forward” approach to malpractice cases. I will often lead with the question: Assuming the medical providers did wrong, what damages were caused, not by the underlying medical problem for which treatment was sought, but rather by the medical provider’s negligence? The distinction is critical in cancer cases where even when properly diagnosed the disease will inevitably cause considerable hardship.
It is important to be able to differentiate between damages that would have been inevitable regardless of when the disease was diagnosed and damages caused by delay. The practitioner should think long and hard about squandering credibility with jurors by boarding medical expenses or lost earnings that would have been incurred regardless of when the disease was discovered. As in all malpractice cases, great care should be exercised when considering cases involving the elderly, patients with significant co-morbidities, and those cases where there are limited economic losses.
Cancer cases present special challenges. The single most important task is to determine the type of primary cancer involved early on, as the site of the primary cancer is important in evaluating the impact of delay. Cancers behave differently depending upon where they arise in the body. Not uncommonly, clients with metastatic disease may not even know where it started, necessitating a speedy and comprehensive record review simply to determine the type of primary cancer involved. Thereafter, we must determine when and how the diagnoses should have been made based upon the applicable standard of care. This analysis will allow us to reach a final conclusion as to the extent of delay in diagnosis. The significance of a given period of delay is frequently a far more complex matter requiring an understanding of the biology of particular cancer involved.
Traditionally when evaluating the significance of delay we were content to know the site of the primary cancer and its current staging. Throughout much of my career this was the critical information that was needed.
However, over time knowledge of cancer biology has grown exponentially. While we still must make reference to the basics, we have learned that each cancer has a unique molecular footprint that must be considered. In truth, we can speak of colon, lung, or breast cancer, but in reality, none of these primary cancer descriptions represent one homogenous group. Within any one broad category of cancer, there can be multiple subtypes each with a distinct molecular makeup that may determine the way it is treated, the chance of success, and the chance of recurrence after treatment.
For example, there are broad types of breast cancers based upon where within the breast the cancer arose and the type of cells involved. However, breast cancers are further categorized based upon their hormone receptor status, the presence of the protein HER2, cell proliferation, and other molecular markers. Lung cancer previously subtyped only by histology such as squamous, adenocarcinoma, and small cell has evolved into a highly complex disease classified according to its probability of responding to immune therapy and multiple molecular markers. Each classification can have predictive value directly related to our cases.
Despite our traditional assumptions as lawyers working on cancer cases, it turns out that some cancers are curable at an advanced stage and some are difficult to cure even at an early stage.
Once we understand the primary site, the period of delay, the grade of cancer, and its molecular features, we are then in a position to reach a conclusion as to causation. Exactly what harm was occasioned by the negligence? Did it allow the cancer to grow locally or did it permit time for regional or distant spread? Given that no one can ever know precisely when a cancer metastasizes, the practitioner should balance this weakness with strong liability and damages in case selection.
In general, an ideal cancer case is one where the cancer could have been diagnosed at an early stage, but due to negligence-related delay is now widespread requiring more extensive, costly, and difficult treatment with a strong likelihood of reduced life expectancy. Regardless of the period of delay, cases should be avoided if the cancer simply grew in place with no difference in treatment and no change in prognosis.
More than ever the timing and availability of health care services must be considered. Most doctors and patients simply can’t get immediate appointments with specialists or rapid diagnostic tests. Allowance for inevitable delays in the delivery of healthcare must be considered when calculating delay.
Cancer survival statistics must also be analyzed keeping in mind that these statistics do not predict how a given patient will do, but rather how a large group of individuals with the same diagnosis have done historically. By and large, these statistics do not take into account recent medical advances. Statistics that are not disease-specific are also misleading, as they do not differentiate between people who die of co-morbidities and those who die because of the cancer in question.
There remain certain cancers that have been traditionally associated with bad outcomes, e.g. pancreatic, liver, high-grade brain cancers, lung cancer, and cancers that arise between the stomach and the esophagus. Some are hard to detect at an early stage while others are hard to eradicate once detected. However, I have occasionally taken on these difficult cases driven by clear deviations from the standard of care and Pennsylvania’s relaxed causation standard, which requires only that we demonstrate that the defendant’s conduct increased the risk of harm to the patient.
If defendant’s conduct eliminated any reasonable chance of cure the plaintiff should recover. Arguably even a small percentage chance of cure constitutes a reasonable chance if that chance has been eliminated by defendant’s negligence. Ultimately it will be a matter for the jury once this threshold is met, but it must be kept in mind that grim survival statistics may persuade some jurors that defendant’s conduct was not a factual cause of plaintiff’s damages as their cancer was not survivable.
Since reducing the chance for cure is the essence of most cancer cases, it is important to understand that tremendous advances have been made in the treatment and cure of certain cancers which must be considered when assessing potential cancer cases. Each year important advances are made in new and exciting treatments involving immunotherapy and precision medicine.
For example, five-year survival rates for prostate cancer approaches 99%. Even widely metastatic testicular cancer is highly curable. Prognosis has improved for melanoma, lymphoma, cervical cancer, and lung cancer. Herceptin has been a game-changer for certain breast cancers.
As practitioners, we must monitor these developments in cancer treatment to assure that we are making good decisions about the cases we choose to pursue. The more we know and understand about these issues, the better we will be at giving our clients a realistic assessment of their chances and assuring that deserving plaintiffs receive full and fair compensation when cancer diagnosis is significantly delayed.
Reprinted with permission from the “4/6/2021 edition of the Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.