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Failure to Diagnose Cancer in Texas

braceletsIn Knox v. Rana, a Texas appellate court considered the wrongful death claim of a woman’s children against the cancer center where she’d been treated. The woman had survived endometrial and breast cancers and was getting radiation treatment from a defendant doctor for a basal cell carcinoma lesion on her nose. The doctor ordered a PET scan, based on the woman’s prior history of cancer. The scan showed she had a mass that seemed like metastatic disease in her pelvis. However, the doctor never told her this or ordered her to obtain treatment.

Later, the defendants would provide evidence that the mother was informed about the worrisome nature of the mass in her pelvis and was asked to get a follow-up in three months. She didn’t undergo the follow-up and in 2012 was diagnosed with metastatic cancer. She passed away in 2013 at age 76, due to her metastatic cancer.

The woman’s children filed a lawsuit against the doctor and cancer center. The defendants filed a motion for summary judgment. The lower court granted the motion. The children appealed. The appellate court explained that the Texas Supreme Court had held that the Wrongful Death Act authorizes recovery for injuries that actually cause death, rather than those that cause less-than-even odds of avoiding death.

The Court had explained that in order to recover compensation for medical malpractice in Texas, a plaintiff needed to prove to a reasonable medical probability that injuries had been legally caused by the defendants’ negligence. In other words, the negligence had to be a substantial factor in causing harm to the plaintiff, and without the negligence, the harm wouldn’t have occurred. A patient can’t recover if a condition predates the health care provider’s negligence, and if the provider acts or fails to act in a negligent way, the condition cannot result in the patient having a 50% or less chance of survival.

Accordingly, a doctor who fails to timely diagnose a pre-existing cancer will not be held accountable for the patient’s death if the cancer is terminal at the time of the failure to diagnose. The plaintiff bears the burden of showing the patient’s chance of surviving the cancer was more than 50%.

In this case, the mother’s cancer metastasized before she got a hysterectomy to treat her endometrial cancer, and even before her nose carcinoma was treated. The defendants presented expert testimony in support of their summary judgment motion that it would have made no difference whether the mother immediately got diagnosed and treated for her metastatic cancerous mass, which negated the causation element of the plaintiffs’ wrongful death lawsuit.

The appellate court explained that once the defendants presented this evidence, the plaintiffs had to show that there was a genuine issue of material fact about causation. This had to be done by producing expert testimony to counter what the defendants claimed. Namely, they needed expert testimony that there was a reasonable medical probability of greater than 50% that their mother would have survived had she started treatment immediately after the PET scan. The plaintiffs didn’t do so, so the appellate court found that summary judgment was proper.

If a loved one dies as a result of medical negligence, the San Antonio wrongful death attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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