Ohio Supreme Court: A Missed Cancer Diagnosis Is a Real Injury, and Emotional Harm Counts

Published April 28, 2011 · Ohio Supreme Court

For seven years, Lonna Loudin went for a mammogram every year. Her husband had died of lung cancer, and she was determined that if cancer came for her, it would be caught early. Every year the films were read as normal, including in 2003. In the spring of 2004 she found a lump herself. The tumor, which an expert later testified had been visible on the 2003 film at one centimeter, had doubled in size and spread to her lymph nodes.

The radiology practice argued that none of that was a legal "injury." On April 20, 2011, the Supreme Court of Ohio disagreed, in a decision that matters to every patient whose cancer was missed on a scan.

The defense argument: "the cancer was already there"

The case is Loudin v. Radiology & Imaging Servs., Inc., 128 Ohio St.3d 555, 2011-Ohio-1817. Ms. Loudin sued the practice and the radiologist for medical negligence. The defendants did not seriously dispute that misreading the 2003 mammogram fell below the standard of care. Instead, they attacked the damages element. Their position, which the trial court accepted, was that "growth and metastasis of cancer are not compensable physical injuries in Ohio."

Think about what that argument means. A patient already had cancer; the doctor's mistake let it grow and spread; the patient needed chemotherapy she otherwise would have avoided. Under the defense theory, she suffered no injury, because she would have had cancer either way. The trial court granted summary judgment and threw the case out.

What the Supreme Court held

The Ninth District reversed, and the Supreme Court affirmed that reversal. Three points from the opinion stand out.

Cancer growth is a physical injury. The Court held that "the growth and metastasis of cancer are cognizable physical injuries." The destruction of healthy cells and the increase in cancer cells are, in the Court's words, "physical injuries, not mere physical changes." Ms. Loudin presented expert testimony that her tumor grew from one to two centimeters, that the cancer spread to her lymph nodes, that her diagnosis advanced from Stage I to Stage IIA, and that she had to endure eight rounds of chemotherapy she would not have needed with a timely diagnosis. That was enough to send the case to a jury.

The patient does not have to feel the injury as it happens. The defense argued that because Ms. Loudin was not aware of the tumor growing, she could not claim it as an injury. The Court rejected that outright, noting that Ohio law already recognizes that injuries in malpractice cases can go undetected for a long time, which is why the limitations period for medical claims does not begin until the patient discovers or should have discovered the injury.

Emotional distress is part of the damages. Ms. Loudin also sought damages for the fear of recurrence and the anguish of learning that her untreated cancer had spread. The defendants tried to recast that as a separate claim for "negligent infliction of emotional distress," which has strict requirements. The Court held that including emotional-distress damages in a negligence complaint "does not automatically transform the claim" into a separate tort. When emotional distress flows from a physical injury caused by medical negligence, it is simply part of the damages in the malpractice case. The Court's syllabus states that such damages "are to be considered in a traditional medical-malpractice claim."

Why this decision matters

Delayed-diagnosis cases are among the most common medical-negligence claims, and among the most aggressively defended. The defense in nearly every one of them is some version of what the radiology practice argued here: the disease was already present, the outcome might have been the same, and the patient cannot prove the delay changed anything.

Loudin takes much of that argument off the table. If the delay allowed the disease to progress, that progression is itself a compensable injury. If the delay changed the treatment, the extra treatment is compensable. And the fear, anxiety, and anguish that come with learning your cancer was allowed to spread are compensable too, without the patient having to jump through the hoops of a separate emotional-distress claim.

Notably, Ms. Loudin's experts put her ten-year survival odds at 85 percent with a 2003 diagnosis and 82 percent with the 2004 diagnosis. The defense pointed to that small difference as proof of no harm. The Court's answer was that a plaintiff "need only show some slight injury" for the damages question to go to the jury. A missed diagnosis does not have to be fatal to be actionable.

The deadline is short

This case is a reminder of how unforgiving the medical-malpractice timeline is. Ohio generally gives a patient one year from discovering the injury to file a medical claim, far less than the two years allowed for most other injuries. Ms. Loudin filed, dismissed, and refiled within the rules, but the footnotes of the opinion show how carefully the deadlines had to be managed. A patient who learns that an earlier scan was misread needs to talk to a lawyer immediately, not after treatment is finished.

We have written before about how evidence in malpractice cases must be pried loose early, most recently in our post on the Ward v. Summa decision, and about how juries value serious surgical injuries. In a missed-diagnosis case, the critical evidence is the original film or scan and the expert who can say what a competent reading would have shown.

What this means for you

• If a later diagnosis revealed something an earlier scan, biopsy, or test should have caught, you may have a claim even though the disease was already present at the time of the missed reading.
• The progression of the disease, the additional treatment, and the emotional toll are all compensable.
• Request copies of every imaging study and report, including the earlier "normal" ones, as soon as you suspect a problem. Do not wait for the hospital to volunteer them.
• The one-year clock in medical cases is short and the rules for when it starts are technical. Call early.