What to do if you are a patient on a potentially cancer causing drug but have not been given the appropriate screening measures for complications?

My mother has had Hep C since the 80’s. She developed cirhosis 10 or more years ago and has had a gastro specialist monitoring her condition. About 1 1/2 years ago, she was diagnosed with liver cancer. In reading about this, it is prescribed that with individuals with hep c and cirhosis they should be screened every 6 months with a ultra sound as that is the only reliable test for liver cancer. She never had a ultra sound. The real testing only began after diagnosis. Now her cancer is terminal. Is this actionable?

Asked on August 5, 2014 under Malpractice Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

It may be actionable IF, based on, for example, medical expert testimony, you can show that it is more likely than not that she developed the complication due to the lack of screening. To have a viable lawsuit, it is necesary not just that the doctor or medical care provide must have committed malpractice (e.g. been negligent, or careless), but also that the provider's malpractice caused that injury or illness. Without a causal link to some injury or illness, there is no effectively actionable negligence, since the civil law (i.e. lawsuit) system only provides compensation for actionable, not merely possible or theoretical, injuries or losses.

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