Personal Injury

Cancer treatment error not necessarily a slam-dunk lawsuit

By AdvocateDaily.com Staff

Errors can occur with surprising frequency when someone is being treated for cancer, says Oakville personal injury lawyer Meghan Walker.

A recent CBC News story revealed that several cancer patients were the subject of “critical incident” reports, which are generated in the health-care system when an unintended event puts an individual’s safety at risk.

“It happens more commonly than people would like to think,” says Walker, an associate with Will Davidson LLP.

She tells AdvocateDaily.com that her office is frequently contacted by cancer patients who fear their diagnosis was needlessly delayed by professional or administrative errors.

“People have biopsies, ultrasounds or some other type of investigative study that should have prompted action, but somehow that patient is not contacted by their doctor for further follow up,” Walker says.

“Sometimes it can take years for a doctor or the patient to realize that a person who should be undergoing cancer treatment is, in fact, not.”

According to the CBC story, there were 43 critical incidents across the Manitoba health system during the last three months of 2017, including a breast cancer patient whose medical records were mixed up with someone else, resulting in the wrong person undergoing surgery for a lumpectomy.

Another breast cancer patient was mistakenly given the all-clear after a tissue sample mix-up, according to the report, while a third person began treatment for the wrong type of cancer when the oncologist was provided with an out-of-date medical report.

A patient advocate quoted in the story said it’s important to remember that the vast majority of procedures go off without a hitch, but added the size of the problem could be underestimated.

“We know that it’s likely that not all critical incidents are reported for a variety of reasons,” said Laurie Thompson, executive director with the Manitoba Institute for Patient Safety.

Walker says it’s a common misconception among the lay population that an obvious medical error will automatically result in a damages claim against the professional responsible. However, she says potential plaintiffs must not only prove there was a mistake, but also that the mistake "put them in a worse-off position than had it been discovered when it should have been."

“You have to show that the patient was worse off as a result of the delayed diagnosis,” Walker explains. “If the cancer was terminal and timely treatment was unlikely to make a difference anyway, then it’s probably not going to be a viable claim.”

Her firm has also received several calls in recent months from cervical cancer patients being treated at a Hamilton, Ont. hospital, where an allegedly faulty radiation therapy may have misguided treatment to the wrong part of their bodies.

“We have to determine what effect any miscalculated treatment has had on their prognosis and treatment plan,” Walker says.

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