Lost Chance Damages and Failure to Diagnose Cancer

Failure to timely diagnose cancer can have disastrous consequences for the patient.  This failure can lead to serious and permanent injuries.  Far too often these failures result in the wrongful death of the patient.   In fact, diagnostic errors and the failure to diagnose cancers are the most frequently filed medical malpractice lawsuits.

Wrongful Death Often Avoidable with Early Detection

The worst and hardest part of this issue for a family to understand is that these deaths could have been avoided.  In fact, many cancers that ultimately prove fatal have very high survival rates when detected early.

The most common cancer diagnostic errors typically involve otherwise very survivable cancers such as breast cancer, colon cancer, cervical cancer and prostate cancer.  In other cases with lower survival rates, the life expectancy could be extended significantly with timely diagnosis.

Lost Chance in Failure to Diagnose Lawsuits

In those cases where the patient dies as a result of diagnostic error, the family may very well have a wrongful death claim against the medical providers.  In addition, in both cases of wrongful death and cases involving worsened outcomes, the patient and family may have claims related to these worsened outcomes under lost chance doctrines.

Under lost chance theories in New Mexico, a patient may recover for damages for those injuries that could have been avoided in case of a timely and proper diagnosis.  This could include wrongful death as well as worsened outcomes short of death.

Lost Chance Can Apply Even With Grave Prognosis

There are cases where a “favorable outcome” may be unlikely due to the nature of the cancer.  Lost chance might still apply even though the outcome was bleak from the beginning.

Lost chance does not strictly apply to potentially favorable outcomes.  This would include those cases where life expectancy could have been extended even though survival was unlikely.  There is value in an extended life even though short lived.

Proving Lost Chance  – New Mexico Jury Instruction

In order for a patient or surviving loved ones to recover for lost chance, it must be proven through expert medical testimony that the patient would have had a better outcome in the absence of the diagnostic error.

The New Mexico Uniform Jury Instruction 16-1635 states:

“A party is liable for negligence resulting in another’s lost chance for [a better outcome to] [survival from] a preexisting condition. This lost opportunity is an injury in itself …”

Of course, negligence on the part of the medical provider must be established.  In addition, the jury instruction states that the plaintiff must show that the negligence resulted in the loss of a “measurable opportunity” for a better outcome.  The measure of lost opportunity can be quite difficult particularly in those cases where the prognosis was bleak to begin.

Lost Chance Damages – New Mexico Jury Instruction

As mentioned, measuring damages can be quite a challenge.  After all, how can you put a price on an extra year, 6 months or even an extra day of life?  However, this must be done.

New Mexico Jury Instruction §13-1802A that states exactly this as follows:

“The valuation of lost chances is necessarily imprecise; the value of the loss may be established by fair approximations, by numbers or verbal descriptions, from which you will arrive at a percentage to apply to the total damages.”

In other words, you must quantify the damages.  The total damages will be apportioned between the lost chance damages and the damages inherent and unavoidable associated with the cancer.  As one might imagine, this becomes a battle of medical experts.

The medical provider will argue that all damages were associated strictly with the cancer and not the failed or delayed diagnosis.  The patient or surviving family members will likely see it much differently.  The patient’s position will have to be supported by medical evidence, which will be presented by the patient’s medical expert.

Do Not Delay Seeking Legal Guidance

As stressed throughout our website and blogs, medical malpractice cases are extremely challenging.  They can take months to even evaluate due to the need for expert review of the file.

The deadlines in medical malpractice cases are strict and often unique to medical malpractice claims.  Missing a deadline will bar the claims completely.  It is important to contact an experienced medical malpractice attorney as soon as you suspect medical negligence has caused serious injury or wrongful death to you or a loved one.