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  • $30.1 Million NYC - Medical Malpractice Case
  • $15 Million Manhattan - Medical Malpractice Case
  • $3 Million Queens - Wrongful Death Case
  • $5.5 Million Bronx - Birth Injury Accident
  • $7.75 Million NYC - Medical Malpractice Case
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New York City Medical Malpractice Law Blog

Has Delayed Diagnosis of Your Cancer in New York City Put You at Higher Risk?

By Rosenberg, Minc, Falkoff & Wolff, LLP. posted in Failure to Diagnose on Tuesday, March 03, 2020.

According to estimates, 1,735,350 new cancer cases were diagnosed in 2018 in the US, and 609,640 people succumbed to the disease. Cancer has an average five-year survival rate of nearly 60 percent, but that differs significantly depending on the form of cancer. In general, the chances of survival are higher if the cancer is diagnosed and treated early. 

Unreasonable delays in cancer diagnosis are grounds for a medical malpractice claim. But malpractice cases are complex, and there are various roadblocks that you need to identify and overcome to be able to create a solid case for damages.


At the outset, any case involving cancer misdiagnosis involves an analysis of the medical and legal issues of causation, which means that the plaintiff will need to prove the following:

  • The malignancy was present
  • If the medical professional had upheld the standard of care, the patient’s cancer would have been detected earlier
  • That they would have likely experienced a more favorable outcome of their disease with an earlier diagnosis

Summarily, it is not sufficient to prove that earlier cancer detection may have increased the possibility of successful medical treatment or survival. The plaintiff must show that earlier detection would have likely changed the outcome.

Cancer Diagnosis

After cancer is first detected, oncologists categorize it into various “stages” to establish the extent of the progression of the disease.

The TNM system is universally used to classify cancer in various stages. This system considers the size of the tumor, whether any neighboring lymph nodes are involved, and if cancer has metastasized (spread) to other areas of the body. The TNM system includes four stages (I-IV) of cancer. Comparing the various stages of cancer can help establish legal causation. 

Statistics show that the earlier cancer is diagnosed, the higher the probability of recovery and a “cure.”

Cancer Claim Defense

While defending a cancer claim, an attorney will often argue that diagnosing the disease earlier would not have changed the outcome, i.e., resulted in survival.

A commonly used defense is that “It was already there,” which reasons that the patient’s cancer was already present and growing. Therefore, diagnosing it earlier would not have altered the outcome for the patient. Defense lawyers often use the growth models theory. This system helps predict the cancer’s inception date in the patient. Defense counsel will then argue that before the time of the doctor’s alleged negligence, the cancer had already advanced to late stages.

However, there is an inherent flaw in growth models as they presume that cancer has a predictable growth rate. In these models, mathematical formulae are used to predict the time it will take for the mass or volume of the cancer to double. The date of inception (the date at which the cancer manifested) is determined by working backward after predicting the time taken for the disease to grow.

The limitations of growth models are:

  • These models are based on an analysis of limited populations
  • They presume constant growth while ignoring differences in growth rates within patients and between patients
  • Growth models are not appropriate comparators for assuming growth as they are based on data taken under different circumstances and conditions.

Assuming the Patient would Die Anyway

Another common defense in cancer misdiagnosis claims involve the assumption that “You were going to die anyway," meaning that the plaintiff would inevitably succumb to cancer (due to the biology of the disease), irrespective of any delays in detection. This argument finds basis in the concept that a delay will only lead to loss of the possibility of a better outcome, instead of the better outcome that is legally required. In such cases, the plaintiff will not be able to recover damages.

However, this defense has a flaw that is contrary to the fundamental principles of law that if a doctor has caused harm to a patient, the patient is entitled to claim damages for that harm.

Diagnostic Test Errors

At times, a medical professional is unable to appropriately diagnose a condition as they relied on incorrect results from lab tests, x-rays, or the reports of other such investigations. This can occur in one of the following ways:

  • The equipment used for the diagnostic tests was defective
  • Human error caused incorrect results; for instance, the samples were mixed up or tainted, the technician did not follow test protocol, the test outcomes were interpreted inaccurately, or the specialist or technician failed to identify something in a pathology slide or x-ray

In such cases, the doctor might not be responsible for medical malpractice. However, someone else might be, such as the technician who misinterpreted the pathology slide. The plaintiff must prove that the error occurred due to negligence.

Did the Patient Suffer Harm from the Misdiagnosis?

Besides, the plaintiff must show that the delayed diagnosis or negligent misdiagnosis has worsened the condition more than it usually would have, had an accurate diagnosis been made at the outset. They will need to prove that this progression harmed treatment.

For instance, due to a delayed cancer diagnosis, the patient may require a more robust course of treatment, such as radiation, or the patient may succumb to cancer as it has spread to other locations and does not respond to treatment any longer. At times, a patient may experience harm even if the cancer is still treatable such as in the case of some cancers where delayed treatment raises the risk of recurrence.

In exceptional cases, a doctor may diagnose a patient with a disease or condition that they do not suffer from. Such patients may also be able to seek compensation by proving that they experienced harm in the form of stress, anxiety, medical issues, and money spent on unnecessary treatment.

Doctors and other medical professionals can make diagnosis errors in various ways:


Misdiagnosis, or wrong diagnosis, occurs when the doctor picks the wrong disease. For instance, a doctor may diagnose a patient with a gastric problem when they might be experiencing a heart attack. Another example is that the doctor may offer a diagnosis of cancer when the patient does not have the illness.

Missed diagnosis

The doctor is unable to diagnose the illness and declares the patient fit when, in reality, the patient has a disease or illness. 

Delayed diagnosis

It takes the doctor an unreasonable amount of time to make the right diagnosis. Late diagnosis is a commonly occurring diagnosis mistake.

Inability to identify complications

The medical professional makes the correct diagnosis but is unable to detect the factors or complications that may alter or worsen the disease or condition.

Consult a Skilled Medical Malpractice Lawyer in NYC today

The seasoned medical malpractice attorneys at Rosenberg, Minc, Falkoff & Wolff, LLP can help you gather evidence and find expert witnesses to support your medical malpractice case. We have extensive experience in handling medical malpractice cases and can help you obtain the compensation that you deserve. For a no-charge consultation, call today at (347) 504-1246. 


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$7,750,000 Recovery Due to Negligent Care in NYC Pediatric Intensive Care Unit

Our client, a 5-year-old patient, receives almost $8 million in compensation from an NYC hospital in a medical malpractice claim won by Rosenberg, Minc, Falkoff & Wolf. Representing the injured child with his team of legal and medical experts, Daniel Minc said, "It was great day for the family."

The case involved negligent care on the part of the hospital pediatric intensive care unit for failing to observe bleeding from a simple biopsy wound which caused neurological damage.




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