Delaware Court Reminds Tennessee Lawyers That Causation Must be Established in Cancer Malpractice Cases

Our office is fortunate to be sought out in a large number of Tennessee medical malpractice cases involving cancer.   Most of the cases involve a delay in the diagnosis of cancer, that is, that the patient presented with certain symptoms or physical findings that should have triggered a diagnosis of cancer earlier than the cancer was actually diagnosed.

Our internal review of these cases often cause us to conclude that the health care provider failed to properly and / or promptly respond the the patient’s complaints, condition and symptoms.  Where we often get hung up, however, is what lawyers causally call the "so what?" question.  In other words, even if we can establish that an error was made, how did the delay in diagnosis (and the start of treatment) harm the patient?

We know, or at least think we know, that prompt treatment is good and delayed treatment is bad.  Prompt treatment cannot start without prompt diagnosis.  Thus, the thought goes, a delay in diagnosis always harms the patient because treatment was by definition delayed.

But the law requires more that the educated (?) guesses of lawyers, patients, and their families.  The law of Tennessee requires medical proof that the error more likely than not caused an injury or death to the patient that would not have otherwise occurred in the absence of the error.  And, from a practical standpoint, that injury must significant so as to justify the expense of the litigation.

So, "could have" made a difference is not enough.  "Might have" avoided metastatic disease is not enough.  Possibilities do not cut it.  

Now, absolute certainty is not required.  But that fact that prompt diagnosis and treatment might possibly have yielded a better result will not work.

Mammarella v. Evantash , No. 548, 2013 (Del. S. Ct. May 15, 2014) from the Delaware Supreme Court reaches the same result under Delaware law.  Plaintiff’s causation expert could not opine on the tumor size at the time of the alleged misdiagnosis or what the treatment would likely have been.

Some states allow a misdiagnosed patient to assert that the failure to diagnosis and treat resulted in a "loss of a chance" that the patient could have survived.  Tennessee is not such a state.  

So, before jumping into one of these cases, look beyond what appears to be a negligent delay in diagnosis and think causation, causation, causation.

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