BWMK Partner Elizabeth Kaveny Examines Cancer Liability Theory for Leading Litigation Journal

Elizabeth A. Kaveny, partner in noted Chicago plaintiffs’ law firm Burke Wise Morrissey Kaveny (BWMK), has written a detailed examination of how plaintiffs’ lawyers can effectively challenge a legal doctrine often used to defend physicians against liability in medical malpractice cases involving a delay in diagnosing cancer. Her article, “Doubling Time in Delay-in-Diagnosis Cancer Cases,” appeared in the September 2012 issue of Trial, the monthly journal of the American Association for Justice (AAJ). As the world’s largest trial bar, the AAJ is a broadly based international coalition of legal professionals promoting justice and fairness for injured persons. Ms. Kaveny is a longtime AAJ member.

In her review of medical and scientific literature as well as case law, Ms. Kaveny discussed the “doubling time” malpractice defense argument. This holds that because a cancerous tumor consists of millions or billions of cells, metastasis occurs so early in the tumor’s life that early diagnosis may not be sufficient for effective treatment. However, Ms. Kaveny wrote, “Plaintiffs can and do use the doubling time theory to their advantage.” She cited issues demonstrated in medical literature: for example, that tumor growth often is not as constant or heterogeneous as the doubling time theory supposes, and that there may be errors in measurement of tumor volume and composition. “Probably the biggest weakness” of using doubling time as a cancer malpractice defense, Ms. Kaveny added, it that “it runs counter to the message of the medical, public health, and cancer survivor communities that early diagnosis and treatment are the keys to cure.” For such reasons, she concluded, doubling time cannot be “mechanically and simplistically” used as a measure of cancer growth patterns “without an honest acknowledgement of its limitations.” Click to download the entire article (PDF).

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