Call for Consultation (337) 366-8994
Call for Consultation (337) 366-8994
Legal disclaimer: This article provides general information about Louisiana law and does not constitute legal advice. Reading it does not create an attorney-client relationship. You should speak with a licensed Louisiana attorney about your specific situation.
The doctor missed the tumor. The radiologist cleared the scan. The primary care physician dismissed your pain as “stress.” These errors carry a heavy price. Cancer moves. It grows. It metastasizes. A delay of three months changes a prognosis. A delay of one year often results in a death sentence.
Louisiana law recognizes this reality. You might not have had a 100% chance of survival. No one does. However, you had a chance. The doctor’s negligence stole that chance.
The Ikerd Law Firm treats these cases as forensic investigations. We do not accept “accidents.” We find the specific point where the standard of care collapsed. We hold the negligent parties accountable.
Most personal injury cases require a “more likely than not” standard. This means a 51% probability. Medical malpractice is different. Louisiana recognizes that a patient with a 40% survival rate still possesses something of immense value. That 40% chance belongs to the patient. A doctor cannot negligently destroy it.
The “Lost Chance of Survival” doctrine allows recovery when a physician’s error reduces a patient’s probability of a better outcome. The injury is the loss itself. It is not the cancer. The doctor did not cause the cancer. The doctor caused the loss of the opportunity to fight it.
In 1986, the Louisiana Supreme Court issued a pivotal ruling. The case was Hastings v. Baton Rouge General Hospital, 498 So. 2d 713 (La. 1986). The court removed an “unreasonable burden” from plaintiffs to prove “certain survival.”
Thus, you do not have to prove you would have lived. You must prove that the doctor’s failure deprived you of a chance to live. This chance must be “meaningful” in order to have value.
Cancer cases frequently involve lost chance claims because early detection directly affects patient outcomes. Survival rates vary based on the stage at which cancer is diagnosed.
We do not take the doctor’s word. We do not rely on hospital summaries. We go to the source.
Modern medical records include digital footprints. We look at the “Audit Trail.” This data shows exactly when a doctor opened your file. It shows how long they looked at your imaging. Sometimes, a radiologist spends thirty seconds on a scan. That thirty-second window might contain the evidence of your cancer. We prove they rushed.
Cancer staging is scientific. We hire oncological experts to perform “backcasting.” We look at the size of the tumor at the time of the late diagnosis. We calculate the growth rate. We determined the stage the cancer occupied six months prior. If the cancer moved from Stage I to Stage III during the doctor’s delay, the “lost chance” is quantifiable.
Louisiana Revised Statute 9:2794 dictates our burden. We must prove:
Medical negligence in cancer cases follows specific patterns. We investigate these common failure points:
Doctors often label symptoms as “benign.”
A forensic investigation reveals whether the doctor performed the necessary differential diagnosis. If they did not rule out cancer, they failed.
A “wait and see” approach is often a death sentence. The standard of care frequently requires immediate imaging. This includes CT scans, MRIs, or PET scans. If a doctor fails to order these tests despite the presence of risk factors, they have breached their duty.
Pathologists look at tissue samples. They see cells. Sometimes, they misclassify malignant cells as benign. This stops treatment before it begins. We send original slides to independent, world-class pathologists. We find the errors the hospital missed.
A lab identifies a problem. The doctor never calls the patient. The result sits in a portal. The patient assumes everything is fine. This “administrative error” is medical malpractice. We track the flow of information. We find where the chain broke.
How do you put a price on a 25% chance of living? Louisiana uses the “Lump Sum” approach. This comes from Smith v. State Department of Health and Hospitals, 676 So. 2d 543 (La. 1996).
The court does not use a simple math formula. They do not take the value of a life and multiply it by the percentage lost. Instead, the “lost chance” is its own category of damage.
The jury considers:
Late-stage cancer treatment is more aggressive. It is more expensive. It is more painful. We claim every penny of these costs.
The rules in Louisiana have changed. You must understand how these updates affect your claim.
Louisiana is now a “modified comparative fault” state. This applies to all torts. If a jury finds you more than 50% at fault for your outcome, you recover $0.
In a cancer case, the defense will blame you. They will say you missed an appointment. They will say you failed to report a symptom. They will claim you failed to follow up with a specialist they referred you to. They will try to push your fault over the 50% mark. We build a defense against these tactics. We prove the physician’s expertise makes them the primary responsible party.
The general statute of limitations (prescription) in Louisiana is now two years. However, medical malpractice remains governed by specific triggers under La. R.S. 9:5628.
The “Discovery Rule” is vital. You might not know a doctor missed your cancer until a second doctor finds it a year later. Your clock starts when you realize something went wrong. Do not wait. These deadlines are absolute.
You cannot sue a doctor directly in court immediately. Louisiana Revised Statute 40:1231.8 requires a Medical Review Panel.
The panel’s opinion is not the final word. However, it is used as evidence at trial. Many law firms fear the MRP. They see it as a “doctors protecting doctors” club. We see it as an opportunity. We use the MRP to lock the defense into a story. If they change their story later, we catch them.
Louisiana imposes a strict cap on general damages in medical malpractice cases. This is $500,000.
The $500,000 cap does not include future medical expenses. This is a critical distinction. Cancer treatment is astronomically expensive. Immunotherapy, chemotherapy, and palliative care cost millions. We hire Life Care Planners. These experts project every future medical cost. These amounts sit outside the cap. We fight for every dollar of your care.
If you suspect a delayed diagnosis, follow these steps:
Get every page. Do not rely on the “patient portal.” Portals are incomplete. You need the full certified record. You need the “DICOM” files for all imaging. DICOM files allow our experts to see exactly what the doctor saw.
If you come to use far enough in advance of the filing deadline, we can pay to get these records for you, but the doctors/hospitals will have to give them to you at little to no cost if you secure them yourself.
Memory fades during a crisis. Write down every date.
Witnesses are essential. Your spouse or child can testify to what the doctor promised.
The hospital’s “Risk Management” department is not your friend. They might offer an apology. They might offer to “waive your bill.” This is a tactic. They want you to sign a release. Never sign anything without a forensic review of your case.
We are not generalists. We are forensic investigators. We understand the “secrets” the medical industry hides.
Doctors are humans. Humans make mistakes. However, when those mistakes steal a life, the law requires accountability.
Your time has value. The doctor’s negligence took a portion of it. We are ready to take it back.
Call (337) 366-8994. Consultations are free. They are confidential. We will review your records. We will tell you the truth. Do not let the clock run out on your rights.
No. The question is the stage at the time of the error. If the cancer was Stage II when the doctor missed it, you lost a significant chance. You can sue for that difference.
Maybe. The doctor is defending their career. They are biased. Our independent experts make the final determination. Advances in oncology mean even “late” catches often have treatment options.
Yes. In Louisiana, the total general damage recovery for one act of malpractice is capped at $500,000. This is true regardless of the number of plaintiffs.
This is a multi-party claim. We investigate everyone in the chain. Sometimes multiple breaches occur.
Yes. ER doctors must follow the standard of care. This often includes ruling out life-threatening conditions.
We work on a contingency fee basis. You pay nothing upfront. We pay for the experts. We pay for the records. We only recover if you win.
The MRP process often takes 18 to 24 months. A trial adds more time. These cases are a marathon. We provide the stamina needed to finish. Anyone telling you differently is just trying to get you to sign a contract with them. That is not our style.
There are various types of damages that may be recoverable, including:
No. This is also applicable to other serious medical conditions, but cancer misdiagnosis and delay are some of the most common scenarios.
No. This is also applicable to other serious medical conditions, but cancer misdiagnosis and delay are some of the most common scenarios.
Possibly. Certain family members may pursue a wrongful death and lost chance of survival claim if the medical negligence reduced the person’s chance of living longer.
Ikerd Law Firm