Medicolegal analysis of the delayed diagnosis of cancer in 338 cases in the United States
K. A. Kern
Department of Surgery, Hartford Hospital, Conn.
OBJECTIVE: To define the frequency, clinical characteristics, and legal
outcomes of the delayed diagnosis of cancer leading to negligence
litigation. DESIGN: Retrospective review of 338 jury verdict reports from
42 states in the United States. SETTING: State and federal civil court
decisions, as reported to litigation survey services, in a 5-year interval
from 1985 to 1990. RESULTS: Of 338 cancers divided into 13 major organ
sites, breast (38%, n = 127), gastrointestinal (15%, n = 51), lung (15%, n
= 50), and head and neck cancers (10%, n = 33) accounted for 80% (270/338)
of lawsuits. The average diagnostic delay for 212 cases was 17 months. The
median age of patients with delays was 15 years younger than the age of
patients presenting with cancer in the general population. For cancers in
nine major organ sites, the ratio of mortality for patients filing lawsuits
to that for patients with cancer in the general population averaged 3.4:1.
The total known indemnity payout was $140.2 million, with an average payout
per case of $64,600. At 1 to 3 months of diagnostic delay, jury verdicts
largely favored the defense (seven of 11 [65%] defense verdicts); after 6
months of delay, jury verdicts were almost evenly divided between defense
verdicts, plaintiff verdicts, and out-of-court settlements. CONCLUSIONS:
The delayed diagnosis of cancer leading to negligence litigation is
associated with significant indemnity payments, often involves middle-aged
patients far younger than the expected age in the general cancer
population, and is defensible only in the minority after 6 months of
diagnostic delay.
