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ARTICLE |

Medicolegal Analysis of the Delayed Diagnosis of Cancer in 338 Cases in the United States

Kenneth A. Kern, MD
Arch Surg. 1994;129(4):397-404. doi:10.1001/archsurg.1994.01420280073009.
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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.(Arch Surg. 1994;129:397-404)

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