A. Delayed Diagnosis of Cancer

Delayed diagnosis of cancer is one of the most common types of delayed diagnosis cases. Unfortunately, this occurs a lot more than it should. When considering suing their doctor for delayed diagnosis of cancer, plaintiffs must consider the fact that they already had cancer when the negligence occurred. It is this very pre-existing cancer which gives rise to the possibility of a case – the cancer was there to be diagnosed, and that opportunity was lost.

The fact that the plaintiff already had cancer when the negligence occurred means the plaintiff must prove that the delay in diagnosis harmed them more than the underlying cancer condition was already going to. This damage can take several forms, and is usually demonstrated by the difference between:

(1) the outcome the plaintiff could have expected if they had been diagnosed as soon as possible, and
(2) the outcome that actually occurred, given they were diagnosed late.

Delayed diagnosis of cancer cases are often brought against “first line” doctors, such as general practitioners. The first hurdle is proving that a GP breached his or her duty of care to their patient in failing to diagnose the cancer, and an expert opinion is needed (i.e. on whether the treatment provided was sub-standard). The next hurdle is the evidence required by an oncologist. That oncologist’s report should provide an opinion on the 2 points above.

If there is a difference between these two points, then the plaintiff may have a legal case in medical negligence.

B. Delayed Diagnosis of Appendicitis

Delayed diagnosis of appendicitis is also unfortunately common. As with all delayed diagnosis cases, once the plaintiff can establish breach of duty of care, a comparison must be made of:

(1) what would have happened if the appendicitis had been diagnosed as soon as possible, and
(2) what did happen, given the late diagnosis.

This can sometimes mean the difference between the appendix bursting or remaining intact. In turn, proper diagnosis can mean the difference between laparoscopic (keyhole) surgery and laparotomic (open) surgery. It may also affect the plaintiff’s recovery time, ongoing digestive issues, and other related medical issues. Again in this case, the plaintiff must have an expert opinion on whether the plaintiff would have had these issues in any event.

C. Delayed Diagnosis of an Orthopaedic Injury

If a broken bone is improperly diagnosed, or diagnosed and referred for inappropriate treatment, the opportunity to properly treat the break (for example, surgically) may be lost. The bone may then heal in poor alignment or in the wrong position, and this can sometimes mean a more invasive surgery to correct the now incorrectly healed bone. Often, plaintiffs just decide to put up with the incorrectly healed bone, because the prospect of a more invasive surgery and second recovery period is not all that appealing. The evidence in a case like this needs to compare:

(1) what limitations the plaintiff would have had with the initial injury and correct management of it, versus
(2) what limitations the plaintiff now has considering the initial injury, inappropriate initial management and improper healing (with the possibility of corrective surgery at some point).

Firstly, the plaintiff must establish that the injury was diagnosable and that appropriate treatment was a viable option. Then the plaintiff needs to establish that the delay in diagnosis and/or treatment has resulted in a worse outcome than they would otherwise have had.

Overall Message

In every case of delayed diagnosis, when tackling causation, the plaintiff needs to prove that it was the delay in diagnosis and/or delay in appropriate treatment which materially contributed to the damage they now suffer from. When considering legal options, a plaintiff must always keep in mind that there is a distinction between the consequences of the underlying condition and the consequences of the negligence itself.

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