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Cancer Misdiagnosis Lawsuit: Filing A Malpractice Claim In New York

While cancer, one of the disease world's most aggressive killers, can be difficult to diagnose, it's certainly not impossible. Centuries of medical experience and in-depth research have given practicing physicians numerous effective tools for catching malignant tumors before they spread.

But older, simpler principles still reign supreme in doctors' offices and hospitals across the country. Every medical professional is bound to a professional standard. When they violate that standard, and patients are hurt, doctors can be held accountable.

Can I Sue For A Misdiagnosis Of Cancer?

Yes, in many cases, patients have every right to hold their physicians liable for the harm caused by a delay in diagnosing cancer, a failure to diagnose cancer or incorrectly diagnosing a benign condition as cancer.

Thousands of people lose precious moments with family and friends because a benign condition has been misdiagnosed as cancer. Others learn only too late that their symptoms were, in fact, the result of a rapidly-metastasizing tumor.

Over 30% of all medical malpractice claims involve misdiagnosis or failure to diagnose, more than surgical errors, inappropriate treatment choices or any other type of doctor negligence.

For those injured by a delayed or missed diagnosis, New York State offers hope through the civil justice system. Filing a cancer misdiagnosis lawsuit doesn't just provide support for your or your loved one's recovery; it's a way of supporting the family who's stood by you and borne this trauma themselves.

What Is Medical Malpractice?

But not every misdiagnosis is a cause for legal action. Some mistakes are benign, causing no demonstrable harm. Others are unavoidable, and not even the most competent, well-educated professional would have been able to make the right diagnosis.

For a viable medical malpractice lawsuit, patients have to demonstrate two basic things:

  1. a doctor violated their standard of care
  2. that violation caused a patient's injury

Every profession is guided by a standard; very simply, there's a right way of doing things and a wrong way. In medicine, these standards change, depending on specialty, level of education and even geography. To define a standard of care in your case, our attorneys will rely on the testimony of medical experts. Our fundamental question is: What would a reasonable, similarly-educated physician have done under the same circumstances?

That's our "standard of care." After defining it, we'll investigate your doctor's actions to figure out whether they violated or "breached" the standard in making your diagnosis.
A violation of the standard of care can take the form of an inappropriate action or a failure to act. In the legal field, a failure to act is also called an "omission."

In other words, we're trying to show that a similar doctor, with a similar specialty, would have diagnosed you correctly. But unless we can prove that a doctor's mistake caused actual harm, it's unlikely that your malpractice claim will move forward.

Proving That Medical Negligence Caused You Harm

Some mistakes have obvious consequences. In terms of cancer misdiagnosis, the death of a loved one is a tragic, and tragically frequent, reason for filing a medical negligence lawsuit. Surviving loved ones may be able to file a "wrongful death lawsuit" against the medical professional whose mistake led to the deceased's passing.

In other cases, you may have to prove that a correct, or earlier, diagnosis would have led to a better outcome. Here are a few examples:

Now that we've covered the basics of medical negligence, note that malpractice laws are highly variable; your case may or may not be viable, depending solely on which state you live in. Here's everything you need to know about filing a cancer misdiagnosis lawsuit in New York.

Is There A Time Limit?


In New York, the "statute of limitations" on lawsuits involving medical negligence is two and a half years. While other states are rather lenient in deciding when that clock should start ticking, New York is fairly strict.

According to the New York City Bar Association, patients have two and half years from:

As written, the law severely disadvantages injured patients, especially those harmed by a misdiagnosis.

Many states have a "date of discovery" law, which starts the clock on the day that a patient learned or should have learned of potential malpractice. Legislation like that would certainly help victims of a negligent misdiagnosis, since many only learn of their true situation months or years after the fact. But as we've seen, New York's malpractice laws don't allow it for misdiagnosis victims. State legislators have tried to pass a similar statute, but so far their attempts have failed.

Exceptions To The Statute Of Limitations

There are three situations in which New York's time limit may be extended:

  1. if the allegedly negligent doctor left the state after harming a patient
  2. if the victim was mentally disabled or mentally ill
  3. if the victim was a minor child at the time of the malpractice. The statute of limitations would begin running when the victim turns 18.

Other Time Considerations In New York

After filing a medical malpractice lawsuit, the plaintiffs' attorney has to file a "certificate of merit" within 90 days. This written document asserts that the lawyer consulted with a licensed physician about the case and decided there was a reasonable basis for bringing the suit.

Failing to file a certificate of merit within the time limit will invalidate your claim.

How Much Can I Win In A Lawsuit?

In terms of damages, the types and amounts of money that patients can recover in a lawsuit, New York is actually more generous than other states. 35 states have passed medical malpractice "damages caps," essentially legal limits to how much victims can be awarded. New York hasn't, so there's effectively no ceiling on your possible compensation.
In 2013, more than $763 million went to New York patients in medical malpractice verdicts and settlements. That's over twice the amount of compensation awarded in Pennsylvania, the second highest ranking state.

Damages break down into three categories:

Again, there's no limit to these damages in New York. Also notable, plaintiffs who win jury awards in medical malpractice lawsuits recover significantly more compensation than plaintiffs in other personal injury cases.

How Much Does Hiring A Medical Malpractice Lawyer Cost?

At Banville Law, it doesn't cost anything. Our cancer misdiagnosis team works on a contingency-fee basis; that means you pay nothing until we win your case.

But even after that, New York's medical malpractice laws limit the amount of compensation we're allowed to receive. Attorneys' fees are calculated on a "sliding scale." In any event, our fees will be a percentage of your total award:

Amount Of Award Attorney's Fee
  • $1 - $250,000
  • $250 - $500,000
  • $500,000 - $1 Million
  • $1 - $1.25 Million
  • + $1.25 Million
  • 30%
  • 25%
  • 20%
  • 15%
  • 10%

That means the money you need stays where it should, in your pockets, before and after the case is over.

Learning about your legal options comes at no charge, too. Just call our experienced medical malpractice lawyers today for a free consultation.

Further Reading

Laurence P. Banville
Date Published: November 3, 2015
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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