In my torts class, we often discussed the factual and proximate causation issues concerning the failure to diagnose illness like types of cancer before they metastasize. Those causation questions are a bit more severe in the case of Jeannine Harvey, a mother of four who died after doctors missed her advanced cervical cancer 30 times according to her family.
The 33 year old mother was repeatedly told that she was merely experiencing anxiety, nerve pain and even a torn ligament as the cancer continued to spread. When doctors finally diagnosed Jeannine’s uterine cancer, it had progressed to the point that it actually shattered her pelvic bone.
What is particularly disturbing is that pre-cancerous cells had been removed from her cervix in 2010 and a routine scan was done a couple years later. That scan showed a 2in (5cm) lump in her pelvis, but doctors did not find it in a prior surgery.
Her sister, Marie Donovan, 34, offered one heartbreaking account of how Jeannine at one point begged on her knees for doctors to take the case more seriously.
While ultrasound scans revealed an over one-inch mass on the left of her pelvis, the hospital said that it had mysteriously disappeared and was probably just a cyst. She collapsed a few days later.
Malpractice in Britain is far less prevalent than in the United States. The United States has almost ten times more medical malpractice lawsuits than Great Britain, which has a number of pro-defendant doctrines and barriers presented by the National Health Service.
Even if Jeannine was advanced in her cancer, the U.S. courts also recognize the tort of “loss of chance” in the failure to diagnose disease even where there was less than a fifty percent chance of survival. Some English courts have proven hostile to such claims as in Gregg v Scott  UKHL 2;  2 WLR 268, where a court rejected such a claim for a man whose chances of surviving non-Hodgkins Lymphoma was reduced from 42% to 25% due to a failure to diagnose the illness.
U.S. courts have found the requirement of at least a 50 percent survivability line to be too severe. One of the first opinions was handed down in 2008 by the Massachusetts Supreme Judicial Court in Matsuyama v. Birnbaum. That case involved a patient who complained about gastric distress and was diagnosed as gastritis. He had gastric cancer and died later. His family sued and the court ruled that the requirement of a better than fifty percent survivability was a view rejected by an increasing number of courts and experts.
I have long been critical of the English system that tends to favor defendants with such rules as the “English Rule” imposing costs on the losing party in litigation. Malpractice is another area where I view the system as lacking effective deterrence and basic fairness, though many of my friends in England would argue that they view our system as being too prone to litigation.