Told you had cancer, then told you did not: misdiagnosis claims in California

Attorney Answer

Possibly, and it turns on what the wrong diagnosis led to. If you had surgery, chemotherapy, radiation or other treatment for a cancer you did not have, that treatment is an injury a malpractice claim can address, judged by an expert's review of the pathology or imaging. If no treatment was given, a claim would rest on emotional distress alone. California allows that in some cases, but it depends on the facts, the damages are capped, and it is often hard to bring economically. Either way, the deadline is short.

Unnecessary treatment. Malpractice in California is defined by its result. Cal. Code Civ. Proc. § 340.5(2):

(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

Whether reading the tests as cancer fell below the standard of care is a question for an expert, as it is in every malpractice case: Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal. 4th 992 (1994).

Distress without treatment. The Supreme Court of California has held that a patient may recover for serious emotional distress caused by a provider's negligence, without a physical injury, because the duty runs directly to the patient: Burgess v. Superior Court, 2 Cal. 4th 1064 (1992). That case arose from childbirth, and whether it reaches a false diagnosis with no treatment depends on the facts and on expert review.

The damages limit. Cal. Civ. Code § 3333.2(a):

(a) In any action for injury against a health care provider or health care institution based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage, subject to the limitations in this section.

The cap on those noneconomic losses is set by the same section and rises each January, which is why a distress-only claim is often hard to bring.

The deadline. Cal. Code Civ. Proc. § 340.5:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.

And Cal. Code Civ. Proc. § 364(a):

(a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

What a lawyer would charge. Cal. Bus. & Prof. Code § 6146(a) limits the contingency fee in a malpractice case:

(1) Twenty-five percent of the dollar amount recovered if the recovery is pursuant to settlement agreement and release of all claims executed by all parties thereto prior to a civil complaint or demand for arbitration being filed.

(2) Thirty-three percent of the dollar amount recovered if the recovery is pursuant to settlement, arbitration, or judgment after a civil complaint or demand for arbitration is filed.

What you can do

1. Ask for your complete records, including the pathology reports, imaging and any second-opinion reports, from both diagnoses.

2. List every treatment you received because of the cancer diagnosis, with dates.

3. Ask a different specialist for an independent review of the pathology or imaging if you have not had one.

4. Keep a record of how the diagnosis has affected you, including any counseling you sought.

5. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Under Cal. Code Civ. Proc. § 340.5, a malpractice suit must be filed within one year after you discovered, or should have discovered, the injury, or three years after the injury, whichever comes first, and § 364 requires 90 days' written notice before suing. When the one-year period started depends on your dates, so take them to a lawyer now rather than counting them yourself.