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by Karen R. Ristuben, Esq. I. INTRODUCTION I. INTRODUCTION Representing a client who has been diagnosed with metastatic cancer is a most challenging and humbling experience. Cancer patients will generally find more solace in cases for which no actionable blame is found. But when the metastatic spread of a cancer could have been prevented or more effectively treated with earlier diagnosis, the client's anger, fear, and grief run deep and ensuing litigation is inevitably emotion-charged. As a practical matter, failure to diagnose cancer cases are among the most costly and difficult to pursue. Several types of medical specialists are often required to address both standard of care and causation. In most cases, the two fundamental questions are (1) whether the primary cancer should have been diagnosed earlier and (2) to what extent earlier diagnosis would have altered the outcome. The factual issues you must fully address to effectively handle a cancer case include:
II . LIABILITY THEORIES Cancer cases generally turn on a physician's failure to diagnose a cancer or a diagnostician's failure to properly interpret the objective date available. Whether the appropriate standards of care were followed depends upon the unique properties of the cancerous lesion and its location. Specific types of cancer are addressed below, but, in general, the following theories are most common: (a) Failure to Properly Screen Asymptomatic Patient. Every medical evaluation provides an opportunity for a health professional to detect early cancer in an asymptomatic patient. If a patient receives regular check-ups from a primary care physician, the physician should take a complete medical history (including family medical history to reveal genetic cancer risks), and perform a complete and careful physical examination. Small, early lesions may be detected by palpation in the head and neck, breast, abdomen, thyroid, skin, testes and Lymph nodes. The American Cancer Society has propounded guidelines for screening tests in asymptomatic patients, reprinted below. While these guidelines are not mandatory and, in fact many physicians disagree with their use, a physician's failure to follow them may infer substandard care. GUIDELINES FOR EARLY DETECTION OF CANCER(1) A. TEST/PROCEDURE: Sigmoidoscopy SEX: Male and Female AGE: Over 50 FREQUENCY: After 2 negative exams 1 year apart, perform every 3 to 5 years. B. TEST/PROCEDURE: Stool guaiac slide test SEX: Male and Female AGE: Over 50 FREQUENCY: Every year. C. TEST/PROCEDURE: Digital rectal examination SEX: Male and Female AGE: Over 40 FREQUENCY: Every year. D. TEST/PROCEDURE: Prostate Exam* SEX: Male AGE: 50 and over FREQUENCY: Every year. E. TEST/PROCEDURE: Papanicolaou (pap) test and pelvic examination SEX: Female AGE and FREQUENCY: All women who are, or have been, sexually active or have reached age 18 should have an annual Pap test and pelvic examination. After three of more consecutive satisfactory annual exams, the Pap test may be performed somewhat less frequently at her physician's discretion. F. TEST/PROCEDURE: Endometrial tissue sample SEX: Female AGE: At menopause, women at high risk** FREQUENCY: At menopause. G. TEST/PROCEDURE: Breast self-examination SEX: Female AGE: 20 and over FREQUENCY: Every month. H. TEST/PROCEDURE: Breast physical examination SEX: Female AGE and FREQUENCY: 20 to 40 - Every 3 years; Over 40 - Every year. I. TEST/PROCEDURE: Mammography SEX: Female Screening mammography should begin by age 40. AGE and FREQUENCY: 40-49 - Every 1-2 years; 50 and Over - Every year. J. TEST/PROCEDURE: Health counseling and cancer check-up*** SEX: Male and Female AGE and FREQUENCY: Over 20 - Every 3 years; Over 40 - Every year. * Annual digital rectal examination and prostate specific antigen test should be performed in men aged 50 and over. If either result is abnormal, further evaluation should be considered. ** Risk factors include a history of infertility, obesity, failure to ovulate, abnormal uterine bleeding, or estrogen therapy. *** This should include examination for cancers of the thyroid, testicles, prostate, ovaries, Lymph nodes, oral region and skin. (b) Failure to Diagnose Inadequate Medical History A complete and accurate medical history is crucial for a differential diagnosis that includes cancer. It is incumbent upon the physician to elicit and record the details of past and present symptoms; history or absence of trauma; family history of cancers; exposure to possible carcinogens; history of alcohol or tobacco use; radiation exposures; and a walk-through of the general signs and symptoms of cancer (weight loss, fever, fatigue, pain), and the seven classic warning signs of cancer (change in bowel habits or bladder functions; sores that do not heal; unusual bleeding or discharge; lump or thickening in breast or elsewhere; indigestion/difficulty swallowing; recent change in wart or mole; cough/hoarseness). If consultations or diagnostic tests were obtained prior to a particular physician's evaluation, the physician may have a duty to review prior test reports, to inspect recent films, or to consult with other medical personnel regarding the patient's history. Inadequate Physical Examination A recurring theme in cancer litigation is the failure of a physician to adequately inspect, palpate or otherwise examine an area where a tumor is later detected. For instance, small ( + /- 1 cm) early tumors of the rectum, prostate, testis, vagina, breast, skin, head, neck and thyroid can be detected with careful palpation before metastatic spread. Failure to Order Diagnostics or Refer to Specialist When cancer is or should be within the differential diagnosis, a physician has a clear duty to perform or obtain the necessary diagnostic tests and refer the patient out to appropriate specialists. Whether performed at office visit or in a hospital setting, physicians have the duty to utilize a host of invasive and non-invasive tests ranging from in-office stool guaiac and pap tests to complex endoscopy techniques and advanced radiological diagnostics. Issues may involve a physician's failure to biopsy a lesion, failure to follow up a biopsy reported as suspicious, negligent acquisition of tissue or cell samples, and negligent interpretation of biopsy samples. Liability also exists for a physician's failure to read and heed a diagnostic test report or to convey the results to the patient; for a physician's failure to obtain additional tests or diagnostics after a negative test finding when the clinical symptoms continue; and, generally, when the diagnostics performed failed to rule cancer out of the differential diagnosis. A physician's failure to adequately instruct the patient to seek follow up care may result in liability. A patient in whom cancer is or was suspected should be strongly advised (preferably in writing) to follow up in the event of changing or worsening symptoms. The patient should be told what specific signs of recurrence or advancement may appear, and the precise consequences (i.e. metastasis) of failing to follow up as recommended. (c) Liability for Misinterpreted Diagnostics - Radiology & Pathology Radiologists, pathologists, and the other laboratory personnel charged with interpreting films, and tissue and fluid samples may be liable for negligently interpreting and reporting their findings. When an ordering physician relies upon the accuracy of a test report, whether it be an x-ray, mammogram, biopsy or blood test, the diagnostician is potentially liable. Analyzing the standard of care in these cases requires having the films, slides, or other evidence reviewed independently and carefully surveying medical texts, treatises, and practice standards. IV. TYPES OF CANCER A. Primary Site: Skin (Non Melanoma) Risk Factors: Exposure to ultraviolet light and the inability to tan, radiation exposure, family history and genetic defects. Clinical Presentation: 1) Basal Cell - This tumor presents as shiny translucent nodule with prominent tiny blood vessels. A large majority are on the face, ears, and back of hand. 2) Squamous Cell - Usually presents as scaly, keratotic slightly elevated lesion, 80% develop on arms, head and neck. Diagnosis: Biopsy Treatment: Various forms of excision/radiation, cryotherapy, (liquid nitrogen is used to freeze the tumor to produce necrosis), topical chemo agents Prognosis and Follow Up: Frequent follow up examinations are recommended to detect recurrences which are most likely to occur within the first two years after treatment. Prognosis is typically good when caught in early stages. B. Primary Site: Skin (Cutaneous Melanoma) Risk Factors: Ultra violet light, prolonged solar exposure in childhood and adolescents. Family history 5-10%. Clinical Presentation: ABCD of melanoma Asymmetry Border irregularity Color variegation Diameter greater than 6mm. Characteristics of Suspicious Nevi: Color: Variable mixture of tan, brown, and red/pink within a single nevus. Each nevus looks different from others Shape: Indistinct and possibly irregular border Size: Usually >5mm with some larger than 10mm. Number: Often >10 nevi scattered over body, although some patients have only 1. Location: Most common on the torso, although also found in areas free of benign acquired nevi, such as buttocks, breast and scalp. Topography: Predominantly flat, but central area may be raised. Diagnosis: Excisional Biopsy Treatment: Excision is the only curative treatment. Interferon for deep tumors has shown promise. Prognosis: Depends on depth of tumor. Staging is based on level of skin invasion. C. Primary Site: Head and Neck Risk Factors: Alcohol and tobacco abuse, chewing tobacco, radiation, chemical carcinogens. Clinical Presentation: Chronic ulcerative lesion of lip, mouth, tongue; white patches on mucosa of mouth, pale red velvety patches on mucosal surface, firm indurated masses at base of tongue or on tonsil. Unexplained consistent pain especially at tongue base. Pain in ear or neck related to swallowing; nasal blockage; diplopia, proptosis; cranial nerve palsy; hearing loss; chronic sinusitis; hoarseness; voice changes; malodorous breath; mucosal lesion; masses; pain; difficulty swallowing or breathing; weight loss. Diagnosis: Fine needle aspiration, biopsy; CT or MRI scan; barium swallow: bronchoscopy; laryngoscopy; nasopharyngoscopy; esophagoscopy. Treatment: Excision, radiation, chemotherapy Prognosis: Surgery often results in cosmetic or functional deformities, speech loss. Cure rate depends upon type and extent of the primary tumor. TNM staging system describes location, size, and distribution of tumor for treatment options (T = tumor size; N = node involvement; M = metastases) careful staging is necessary to suggest prognosis. D. Primary Site: Thyroid Risk Factors: Exposure to radiation in childhood Clinical Presentation: Neck mass, enlarged cervical Lymph node; hoarseness; enlarged or nodular thyroid gland. Diagnosis: Fine needle aspiration biopsy; thyroid function tests; thyroid radio nuclide scans. Treatment: Depending upon type and extent of cancer, lobectomy, thyroidectomy, nodal dissection, radiation therapy, radioactive iodine for high risk patients. For some patients thyroid hormone is used. Prognosis: Surgery may result in loss of thyroid function and laryngeal nerve paralysis. Cure rate depends upon type and extent of the primary tumor. E. Primary Site: Breast Risk Factors: Family history with added risk if mother or sister had breast cancer, female sex, older age during first pregnancy. Certain benign proliferative changes in biopsy (atypical hyperplasia), either ductal or lobular with a family history. Lobular carcinoma in situ. Late menopause; early menarche; High dietary fat especially animal fat and estrogen. Clinical Presentation: Most always painless palpable mass; nipple discharge, nipple retraction. Diagnosis: Mammogram; palpation; fine needle aspiration; biopsy. Treatment: Excision; excision combined with radiation; mastectomy; axillary node dissection; chemotherapy; hormone therapy. Prognosis: Depending upon Lymph node metastases and tumor size, 70-80% of node-negative patients survive disease-free for at least ten years; 60% of node-positive patients die within ten years. F. Primary Site: Lung Risk Factors: Smoking, asbestos and other industrial exposures, radiation exposure and indoor air pollutant exposure. Clinical Presentation: New or changing cough; hoarseness; hemoptysis; anorexia; weight loss; dyspnea; recurrent pneumonia; chest wall pain, shoulder/arm pain. Diagnosis: Chest x-ray, CT scan, bone scan, sputum cytology, bronchoscopy Treatment: Surgery for non-small cell carcinoma, radiation therapy, chemotherapy for small cell carcinoma. Prognosis: Non-small cell carcinoma: five-year survival rate with surgery: Stage I - 55% Stage II - 30 - 40% Stage IIIa + b are not surgical candidates. These statistics are with radiation and chemo; Stage IIIa - 30 - 40% Stage IIIb- 10 - 20% Small cell carcinoma: characterized by rapid growth, early distant metastasis and survival < than one year without treatment. Limited Stage: 10 - 15% 5 yr survival Extensive Stage: with chemotherapy treatment: 7 -12 months survival. At two years < than 10% of patients are alive and free of disease. G. Primary Site: Pancreas Risk Factors: Diabetes mellitus; family history; industrial carcinogen exposure; smoking. Coffee exposure considered a controversial risk. Clinical Presentation: Epigastric or periumbilical pain, radiating to back; jaundice; weight loss; nausea; constipation; diarrhea; upper abdominal mass. Diagnosis: Liver biopsy, CT and MRI Scan; monoclonal antibody test; ultrasound; ERCP. Treatment: Biliary enteric bypass; tumor resection; pancreatoduodenectomy. Radiation in some cases. Prognosis: 0-18% 5 year survival rate after surgical removal of tumor. Five year survival rate of 30-57% in subsets of patients with cleanly resected small tumors without nodal involvement. H. Primary Site: Colon, Rectum, Anus Risk Factors: Chronic ulcerative colitis; polyps; family history. Clinical Presentation: Altered bowel habits; vague abdominal pain; hemorrhoids; blood in stool; rectal bleeding; unexplained iron deficiency anemia. Diagnosis: Digital rectal examination; fecal occult blood test; sigmoidoscopy or colonoscopy; barium enema; CT scan. Treatment: Tumor resection; radiation therapy and chemotherapy. Prognosis: Five-year survival with appropriate treatment. Stage A - > 90% Stage B1 - 80-85% Stage B2- 70-75% Stage C1 - 50-65% Stage C2 - 25-45% I. Primary Site: Prostate Risk Factors: Race (African American); genetic predisposition; high intake of animal fat and red meat, aging men. Clinical Presentation: Urinary obstruction; pain in back, pelvis, shoulders; urgency; nocturia; hematuria. Diagnosis: Digital rectal examination; prostate specific antigen (PSA) blood test; routine studies; transrectal ultrasonography. Treatment: Prostatectomy; radiation therapy Prognosis: Survival rates overall depend upon grade of tumor and nodal involvement - widely variable. Radical prostatectomy ten year survival is 80 - 90% in clinically localized prostate cancer. With extension to the seminal vesicles ten year survival with radical prostatectomy is 50 - 60%. J. Primary Site: Cervix Risk Factors: Family history, sexually active females over 18 years old. Clinical Presentation: Early stage usually asymptomatic; abnormal bleeding or discharge. Diagnosis: Pap smears yearly for most women; cone biopsy. For premalignant, noninvasive lesions aka cervical intra-epithelial neoplasia (CIN I), moderate dysplasia (CIN II), and severe dysplasia carcinoma in situ (CIN III), treatment is cryocautery, thermocautery, electrocautery or carbon dioxide laser treatment. For invasive cervical cancer, treatment is hysterectomy, bilateral pelvic Lymphadenectomy, and radical radiation therapy, depending upon metastasis, patient's age and medical status. Prognosis: Five year survival rates: Stage I - 90% Stage II - 70-80% Stage III - 40% Stage IV- 10% K. Primary Site: Ovary Risk Factors: Family history of breast or ovarian cancer. Clinical Presentation: Palpable mass; vague changes in bladder, bowel or sexual function; abdominal distention, ovarian cysts 5cm or greater. Diagnosis: Pelvic examination; pelvic ultrasound; serum CA-125, AFP and HCG tests; biopsy; exploratory laparotomy. Treatment: The cornerstone of therapy is the initial operation. Ideally the surgeon should be skilled in cytoreductive surgery and knowledgeable about the staging of ovarian cancer. Whenever possible the surgery should leave the patient free of residual tumor nodules 1 cm. or larger. Total abdominal hysterectomy; bilateral salpingo-oophorectomy; omentectomy, peritoneal washings for cytology, appendectomy pelvic and aortic node biopsies. Chemotherapy for stage III and IV. Prognosis: Stage I - 95% cure rate with surgery alone. Stage II and (stage I with high risk features) - treatment with surgery & chemo yield an 80% survival rate. Stage III & IV - With surgery & chemotherapy, long term survival is only 10-30%. L. Primary Site: Soft tissue and bone sarcomas. Clinical Presentation: Painless progressive swelling in extremity (soft tissue); visible enlargement of bone and pain (bone). Diagnosis: Biopsy, x-ray, CT, MRI. Treatment: Current therapeutic approaches for soft tissue sarcomas emphasize preservation of affective limb and its function. Conservation surgery removes the obvious lesion and radiation eradicates the microscopic extensions beyond the clinically evident mass. Radiation can be done pre or post surgery. Bone sarcomas: limb sparing approaches via surgery, chemotherapy and radiation first choice although amputations are still required for uncommon situations. Prognosis: Five-year survival > 75% for well differentiated tumors and <25% for poorly differentiated tumors. M. Primary Site: Lymphatic System - Lymphomas Hodgkin's Disease (HD) - Non-Hodgkin Lymphoma (NHL) Hodgkin's Lymphoma Clinical Presentation: Painless localized swollen Lymph nodes in cervical or supraclavicular region that are rubbery, non-tender and movable; cough, dysphagia, dyspnea, fevers, night sweats, weight loss, fatigue, pain. Diagnosis: Examination of Lymph nodes; biopsy; liver spleen scans; CT; staging laparotomy: bone marrow aspiration; Gallium scan. Treatment: Splenectomy in some cases. Radiation therapy, chemo for stage IIIA & IV. Prognosis: Cure rate with radiation therapy at stage IA or IIA is over 90%. Radiation and chemotherapy results in cure rate of 60 - 70% for stage III2, and IIIB. Overall cure rate for stage IV with combined therapies is 50%. Patients are at risk for secondary cancers from radiation therapy. Non-Hodgkin's Lymphoma Clinical Presentation: Often present with advanced disease. Generalized enlarged lymph nodes, anemia, weakness, night sweats, fever, weight loss. Diagnosis: Chest CT, CXR, peripheral blood smears, bone marrow biopsy and aspiration, bone scans. Treatment: Multidrug chemotherapy is mainstay treatment. Radiation for stage 1-2. Prognosis: Major prognostic factors are stage of disease and histological type and grade. Prognosis is variable, not as favorable as Hodgkin's. Stage 1-2 with low grade lymphoma exceed ten years survival. Stage 3-4 considerably shorter. V. CAUSATION AND DAMAGES Many medical malpractice cases that fail do so for lack of sufficient evidence on the causation issues. In cancer litigation, the plaintiff must typically prove that earlier diagnostics would likely have detected the cancer; that earlier detection would have resulted in earlier treatment; and that earlier treatment would have demonstrably altered the plaintiff's prognosis and treatment options. Those are extraordinarily complex issues when one considers the host of variables presented by most cancers including diagnostic limitations, tumor pathologies and staging differentials. The essential question is "Did the delay itself (in diagnosis or treatment) cause damages?" But to answer this question you must understand the following: (a) Diagnostic Limitations. In many cases, the difference in prognosis or treatment options with earlier diagnosis may be marginal. This is problematic where the tumor pathology is particularly aggressive or fast-growing (e.g. poorly differentiated tumors such as adenocarcinomas and small cell neoplasms), where the tumor was inoperable from the onset due to its location (e.g. brain stem), and where the lapse of time between the malpractice and the diagnosis was relatively short. (b) Tumor Pathology. The pathologic identification of a tumor provides parameters for treatment options and prognosis. A pathologists' role is to determine whether the biopsy sample shows a malignant or benign neoplasm; to identify the tumor type: and to subtype the tumor based upon morphologic, histologic, and biologic variations. Carcinoma, Lymphoma, melanoma, myeloma, and sarcoma are the common malignant neoplasms. Carcinoma subtypes include basal, glandular, squamous, adenocarcinoma, small cell and large cell, all of which vary widely in terms of treatment and prognosis. Tumors may also be defined in terms of grades ranging from well differentiated to undifferentiated, with low grade (well differentiated) having a better prognosis than high grade (poorly or undifferentiated) tumors. (c) Tumor Staging. Following the pathologic diagnosis of cancer, several clinical staging systems are utilized depending upon the cancer type. Staging systems define the extent of the tumor and the presence of metastasis and provide a further framework for treatment and prognosis. The most common staging system is the TNM (tumor, nodal involvement, metastases) classification. Using TNM, a physician will define the extent of the tumor (degree of infiltration, size, whether fixed or extending to other structures); the extent of regional Lymph involvement (size and number of nodes involved); and presence of distant metastasis. (d) Metastasis. A primary cancer lesion can metastasize to other organs via direct invasion, or Emphatically, perineurally, or hematogenously (bloodstream). With respect to proving causation in cancer litigation, the timing of metastasis and the treatment available to the areas affected are crucial issues. In general, a physician whose treatment occurs before metastatic spread will not be liable even if the treatment was negligently delayed. If, however, the tumor metastasis occurs as a result of a delayed diagnosis, the patient's staging may have changed, treatment options may have been reduced, and prognosis may have worsened. The timing, nature, and extent of metastasis, therefore, is a critical factor in establishing causally-related damages. (e) Treatment Options. Cancer diagnosed at different stages will respond to different treatment options including surgery, radiation therapy, chemotherapy, and hormonal therapy. Some early lesions will be successfully treated with radiation alone or surgery alone. If a negligent delay in diagnosis results in more treatment than would likely have succeeded earlier, the patient can recover for that additional treatment, and its risks and side effects, as part of damages. Breast cancer may be removed by the breast-conserving measures of lumpectomy or partial mastectomy if diagnosed at an early stage, but modified radical mastectomy with or without reconstruction, radiation, and chemotherapy (with its attendant side effects of nausea, vomiting, fever, chills, hair loss) may be required at a later stage. Generally, if the treatment options are the same when the cancer should have been diagnosed and when it was diagnosed, there will not likely be legally recoverable damages. (f) Loss of Chance. The delayed diagnosis of a cancer may result in fewer effective treatment options and a poorer prognosis. A change in staging from I to IV carries a concomitant reduction in the patient's treatment options and, consequently, statistical chance of survival. For instance, a patient whose delayed cervical cancer diagnosis resulted in a progression from stage I to stage III has had her statistical five-year survival probability reduced from 90% to 40% (a 50% reduction in chance of survival). Traditional tort law requires the patient to prove that the doctor's conduct more likely than not caused the injury. In a failure to diagnose cancer case, if the patient did not initially have at least a 50% chance of survival, there would be no recovery because, more likely than not, the patient would have died anyway. Many, but not all jurisdictions have now recognized "loss of chance" as a theory of causation. Stated in dicta by the Supreme Judicial Court, "there is reason to question a rule of law that would totally exonerate a negligent physician from tort liability when the patient had a fair, but less than even, chance of survival if the physician had not been negligent." Bradford v. Bay State Medical Center, 415 Mass. 202 (1993). The Bradford patient died from a ruptured aortic aneurysm which had a 50%-60% mortality rate even if properly diagnosed and treated. The court held that the doctor's negligent deprivation of the patient's 40 - 50 % chance of survival was an actionable "loss of a substantial chance to survive " Id., at 208-209.(2) Jurisdictions that fail to recognize the loss of chance theory would deprive a cancer victim of recovery if the five-year survival rate was less than 50%, even if the physician's negligence decreased the opportunity for survival by some demonstrable percentage. Jurisdictions that recognize the theory uniformly require proof that the loss is of a "substantial" chance to survive. What constitutes "substantial" is open to interpretation, but one commentator has suggested: ". . . it is certain in all cases that some degree of mental suffering is inflicted if the patient discovers prior to death that an earlier diagnosis and treatment might have produced a cure. Even the loss of a one percent chance may produce this . . . type of harm to the dignity of the patient." Shoenberger, Medical Malpractice Injury - Causation and Valuation of the Loss of a Chance to Survive, 6 J. Leg. Med. 51, 69-79, (1985). To the cancer victim, any reduction to the chance of a cure may will be "substantial," and the value of that reduction should be left to the jury.(3) A comprehensive approach to causation and damages in failure to diagnose cancer cases would allow the jury to consider: a. whether the defendant's conduct was negligent; b. the plaintiff's chances of survival, if properly treated under the circumstances; c. the extent to which the patient's chances of survival or cure have been reduced by the defendant's negligence; and d. what other damages have resulted from the defendant's negligence, e.g. increased fear of impending death, increased physical pain and suffering from otherwise unnecessary procedures; consequential damages such as monetary losses attributable to the delay in proper treatment.(4) Vl. CONCLUSION The medical complexities of cancer pose daunting legal complexities in litigation arising from a failure to diagnose or properly treat this fatal disease. Counsel handling these cases cannot do so without solid expert assistance and a good working knowledge of the medical literature, the medical evidence, and the law controlling causation and damages. But of equal import is counsel's compassion for the client/patient whose lifespan may have been abrupted by a careless and avoidable medical mistake. END NOTES 1. Data for this section was taken from Cancer Manual, 9th ed. (American Cancer Society, Massachusetts Div. 1996); and Manual of Clinical Oncology, 2nd ed. (Little, Brown & Co., 1988). 2. See also Hicks v. United States, 368 F.2nd 626 (4th Cir. 1966)(patient can recover with proof that doctor's conduct caused substantially reduced chance of survival); accord Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash. 2d 609, 664 P.2d 474 (1983); James v. United States, 483 F. Supp. 581 (N.D. Cal. 1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). Glicklich v. Spievack, 16 Mass. App. Ct. 488, 493 (1983). 3. Herskovits, supra, at 476-77 (14 percent loss of chance of survival may be considered by jury); Hamil, supra, at 1287-88 (once evidence established that conduct increased risk of harm, jury question as to damages); Restatement (Second) of Torts sec. 323 (1965) (liability for negligent rendering of services that increases the risk of physical harm). 4. See generally Shoenberger, supra; Daniels v. Hadley Memorial Hospital. 566 F. 2d 749 (D.C. Cir. 1977). |
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