FAILURE TO DIAGNOSE AND TREAT CANCER CASES
I am proud of the Virginia General Assembly this past session. I know they fought like kids (disgracefully) over the appointment of judges but not all was lost.
For many years, plaintiff’s in medical malpractice cases involving the misdiagnosis of cancer have been treated unfairly in Virginia. The unfairness arose from an onerous and often impossible statute of limitations. Everyone knows that the statute of limitation places an outside date by which a plaintiff must file his/her suit or be forever barred from making a claim.
Here is how the unfairness worked in Virginia cancer cases: A 40 year old woman feels a lump in her breast. She goes to her doctor who orders a mammogram. Unfortunately, the radiologist who reviews and interprets the mammogram misses the obvious cancer and gives the patient a clean bill of health. Three years later the lump becomes larger and painful and upon surgical removal it is found to be cancerous…and it has metastasized into the patent’s lungs and spine. She has a death sentence.
Until this year’s changes by our General Assembly[8.01-243(3)], that 40 year old woman’s medical malpractice claim against her radiologist was barred by the statute of limitations! Under the old law, the negligence occurred and the statute begin to run at the time the radiologist negligently interpreted the mammogram…even though the patient had no idea she had cancer and did everything her doctor requested.
Now, for all claims arising after July 1, 2008, patients have a period of one year from the date the diagnosis of a malignant tumor or cancer is communicated to the patient by a health care provider.