Legal Question in Medical Malpractice in California

My dad recently died of colorectal cancer. He went to the doctor in March 07, complaining of some bowel issues (ribbon stool which is symptom of rectal cancer). His doctor did an exam, said yes, there is something there. So he was referred to have a sigmoidoscopy. The doctor said there was a growth there that needed to be biopsied, so he was referred for a colonoscopy. After the colonoscopy the dr said that there were some polyps that were biopsied and everything else looked good...I asked what about the lump though? He said that it was hemorrhoids. My dad asked what he was supposed to do about the pain he was having, and the doctor literally shrugged his shoulders and said I don't know..Preparation H? That he could have surgery for them, but that he didn't want that, because it was more painful that the hemorrhoids. So for the next 6 or so months, my dad treated his "hemorrhoids" with various ointments, going back and forth to his doctor and getting prescription ointments. Finally in Nov 2007 my dad was sent back to have another colonoscopy. By now, my dad was having less bowel control. I am sorry I hope this doesn't sound crude, I just don't know how to word this. The doctor doing the new colonoscopy couldn't even get the camera inside my dad. So he went and got the assistance of another doctor who happened to be the one who told my dad he only had hemorrhoids. This doctor literally told my dad that I told you I didn't need to see you for ten more years. My dad told him, he could live like this anymore so he needed something. The doctor said fine and referred him to a surgeon. At the exam with the surgeon, she started off planning to do the hemorrhoidectomy I had stepped out of the room, she came out and said it wasn't hemorrhoids but that it looked to be a fissure, but that it was so painful, she wanted to biopsy to rule out cancer but he would have to be sedated, so we came back a week later to surgery and they biopsied it, the doctor told me she was so certain he had cancer that if it came back negative she would repeat the biopsy. Yes it was cancer, she rushed him through to the surgery process, meeting with oncologists, he had to have a full abdominal perineal resection. Meaning everything from his descending colon down was removed and he had a permanant colostomy. His pelvic floor was sealed off. He then went through about 6 months of chemo and chemo with radiation. The doctor told him now if he can remain cancer free for a year, that would be promising. The next month he had a bowel obstruction (aug 2008) and was hospitalized. In october we got a call from his oncologist stating the CT done back when he was in the hospital showed some spots on his lung. So he needed a PET scan. Unfortunately he had several spots on his lungs that were inoperable. He was given 18 months. It bothered me, because this was a CT from 8-4-2007 and the doctor didn't notify us until almost Halloween. So because everything takes forever at Kaiser, finally just before Christmas, he started back to chemo. It didn't work....he passed away 6 weeks ago. Now I know doctors make mistakes...they are human. This was my dads life. If that doctor hadn't dismissed my dad and did the biopsy he was supposed to, the cancer would have been caught approximately six months earlier. I don't know why but I think the doctor who did the sigmoid and referred my dad for the colonoscopy showed me the referral he made to that doctor, where he said that there was a walnut sized growth and gave its location that needed to be biopsied. It was at that point I really felt like that doctor did wrong. He was told exactly what he needed to look for, and didn't.

Okay now to my question...we have been considering a law suit, but truthfully know nothing about doing so or even if this would be a valid lawsuit. Can you give me an idea if this is worth pursuing?


Asked on 8/13/09, 3:19 am

1 Answer from Attorneys
Terry A. Nelson Nelson & Lawless

A medical malpractice claim must be brought within one year of learning of the malpractice. It sounds like he learned in Nov 07 of the incorrect diagnosis, and the truth that he had colorectal cancer. If you are thinking that the delayed diagnosis caused him harm, it is too late to bring action on that claim, as it is more than a year from that surgery.

If you are contending there is a claim for the delayed diagnosis of lung cancer, then you'd have to bring that action within a year of learning the correct diagnosis. Plus, you'd have to have an 'expert' doctor in that field prepared to testify that there was malpractice AND that the delay caused unnecessary harm that otherwise wouldn't have occurred. That might include an allegation that if caught sooner it could have been corrected and that he wouldn't have died. If that is your intent, then you must see if you can get such an expert opinion from his treating doctors or a 'retained expert'. If this is timely and you think you can get that opinion, then feel free to contact me.

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Answered on 8/13/09, 1:13 pm


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