A Pittsburgh Trial Lawyer’s Guide
In Pennsylvania, a missed or delayed cancer diagnosis is medical malpractice when a doctor, radiologist, lab, or hospital failed to find a cancer that a reasonably careful provider would have caught, and the delay increased your risk of harm. You do not have to prove you would have been cured, and you generally have two years to file a claim.
Contact Us for a Free, Confidential Consultation
Article written by Brendan Lupetin, Esq. Brendan is a managing partner in the law firm of Lupetin & Unatin, a medical malpractice law firm located in Pittsburgh and serving Western Pennsylvania.
Our practice is limited to high-value catastrophic cases because that is where we can do the most for our clients and for patient safety.
The short version
In Pennsylvania, you may have a cancer misdiagnosis case when a doctor, radiologist, lab, or hospital failed to find or act on a cancer that a reasonably careful provider would have caught, and the delay left you worse off. Every case turns on two questions: 1. would a careful doctor or hospital have found the cancer sooner, and 2. would finding it sooner have changed your treatment or your outcome? In Pennsylvania you do not have to prove that you would have been cured. Under the “increased risk of harm” standard, your medical expert only must show that the delay raised your risk of harm, and a jury then decides whether that added risk was a substantial factor in what happened to you.
Key takeaway: Pennsylvania’s “increased risk of harm” rule. Under Hamil v. Bashline, a patient in a delayed cancer diagnosis case does not have to prove that earlier treatment would have cured the cancer. The patient’s medical expert must testify, to a reasonable degree of medical certainty, that the provider’s negligence “increased the risk of harm.” Once the expert does, the jury decides whether that increased risk was a substantial factor in causing the harm.
Three more things are worth knowing before you read on:
- A stage 4 diagnosis does not prove malpractice, and a careless doctor does not prove a case. The delay must have made a real difference.
- You usually have two years to file. The rules about when that clock starts are tricky, so please do not guess.
- A call to our office costs nothing. When we investigate a case, we get the records, have them reviewed, and tell you what we found, whether there is a case or not. We do this free of charge.
Table of Contents
The radiologist wrote it twice.
A woman in her fifties went to a vascular surgeon about a circulation problem in her foot, and he ordered a CT scan to look at her arteries. The scan covered her chest too, and the radiologist who read it saw a spot in her right lung, a little over half an inch wide, with spiky edges. He wrote that it was “worrisome for” lung cancer, and he raised the same concern again in the summary at the end of his report.
Her surgeon looked at the scan for the one thing he cared about, which was her arteries. He met with her and went over them, but no one said a word to her about her lung.
Fourteen months later she went to the hospital with new symptoms. By then the cancer had grown and spread to her brain. When her surgeon saw her again, he wrote in her chart that this was “a missed opportunity to have this treated.”
She lived for another year before succumbing to complications from her cancer. She was our client. Her husband was our client. We took on their case and secured a recovery that will take care of their family for generations.
If you found this page, you are probably asking the same thing her family asked us: should someone have caught this cancer sooner?
Our firm has spent decades answering that question for families across Pennsylvania. Below, we draw on cases from our own files to explain how we investigate that question and what medical mistakes look like in real life.
What counts as a cancer misdiagnosis
People use the words “cancer misdiagnosis” to mean four different things, and it helps to know which one fits you.
- Missed diagnosis: The signs were there, but no one found the cancer until a different doctor looked.
- Delayed diagnosis: The cancer was found, but months or years later than it should have been.
- Wrong diagnosis: You were told you had some other illness, or you were told the wrong type or stage of cancer and got the wrong treatment for it.
- False positive: You were told you had cancer when you did not.
Doctors and lawyers often call the first two a “failure to diagnose” or a “delayed diagnosis of cancer.” The names differ, but the legal question underneath them is the same.
How often is cancer missed?
It happens more often than most people would guess.
- A Johns Hopkins team estimated that 795,000 Americans die or are permanently disabled each year because of a diagnostic error, and cancers made up about 13 percent of that harm. That means every year, more than 100,000 Americans suffer a cancer misdiagnosis.
- The same study estimated how often five cancers are missed or found late. Lung cancer was the highest at 22.5 percent, followed by melanoma at 13.6 percent, colorectal cancer at 9.6 percent, breast cancer at 8.9 percent, and prostate cancer at 2.4 percent. These are the delayed diagnosis cancer cases our firm handles most often.
- Cancer leads the list in malpractice claims. An earlier Johns Hopkins study looked at 11,592 diagnostic error claims and found that, among the ones that ended in death or permanent disability, 8 percent involved a missed cancer. That made cancer the largest category in the study.
- The American Cancer Society expects about 90,250 new cancer cases in Pennsylvania in 2026 and about 27,630 deaths.
The truth is that most people with cancer get good care. We have amazing oncologists across Pennsylvania. But a missed cancer is not a freak event and it is not just bad luck or a complication. In nearly every case we take on, the delay comes down to the same handful of mistakes.
The five ways a cancer diagnosis goes wrong
When researchers in Boston studied closed malpractice claims from doctors’ offices, they found that cancer was involved in 59 percent of the claims where a diagnostic error hurt a patient. The most common breakdowns were a failure to order the right test (55 percent), the lack of a proper follow-up plan (45 percent), a history or physical exam that fell short (42 percent), and a test that was read wrong (37 percent).
Those numbers add up to more than 100 because most cases involve more than one mistake. That matches what my partners and I see in our own files, where the same five breakdowns keep turning up.
1. A symptom is explained away
A symptom gets a harmless label on the first visit, and the label sticks. After that, no one stops to ask whether it still fits.
From our files: A young woman had headaches, hearing loss, and fading vision for years. She saw a family doctor and an eye doctor, and neither one found the cause. “It’s probably just a migraine,” they said. A large tumor was found only after she lost consciousness. Because of the delay in diagnosing her brain tumor, she is now legally blind. We secured a substantial seven figure settlement for her. You can read more on our brain tumor misdiagnosis page.
2. The right test is never ordered
Some tests are for people who have symptoms, and others are for people who have none. National screening guidelines spell out who should be offered that second kind.
- Lung: Adults 50 to 80 with a 20 pack-year smoking history, who still smoke or quit within the past 15 years, should be offered a low-dose CT scan every year.
- Colon and rectum: Adults should be offered screening starting at age 45.
- Breast: Women should be offered a mammogram every two years from age 40 to 74.
A doctor who never offers a test the guidelines call for has some explaining to do. So does a doctor who hears a warning sign from a patient and orders nothing at all.
From our files: A man in his sixties had a normal PSA blood test, which screens for prostate cancer. More than four years later the test was repeated. This time his PSA was slightly above the normal range, and a second marker on the same report, the percentage of “free” PSA, was abnormal too. Together, those two results can point toward prostate cancer. His family doctor wrote the numbers in the visit note. According to our internal medicine expert, the doctor then had two proper choices: repeat the test in about a month, or send him to a urologist. He did neither. No one told the patient the result was abnormal, and the screening section of his chart went on showing the old, normal number. Eleven more visits went by over the next three years, including annual checkups. When a new PSA finally came back at 20 or higher, a biopsy showed an aggressive, high-grade cancer. It had spread to lymph nodes from his pelvis to his collarbone, and his cancer doctor told him it could not be cured.
3. A scan is misread
In these cases, the cancer is right there on the film, but the report says it is not.
For more on this kind of error, see our page on radiology errors.
From our files: A longtime smoker took the responsible step of undergoing a routine lung cancer screening. While the radiologist noted a nodule on her scan, he mistakenly graded it as benign (not cancer). Fourteen months later, her follow-up scan revealed alarming news: the nodule was now categorized as “very suspicious” for cancer. The second radiologist even noted in her chart that, looking back at the original scan, the nodule appeared cancerous from the start. A lung biopsy confirmed advanced small cell lung cancer that had already metastasized throughout her body.
To hold the provider accountable, our legal team consulted world-class independent medical specialists:
Radiology Expert: Determined that the initial radiologist was negligent in dismissing an active, visible cancerous nodule as harmless.
Oncology Expert: Concluded that if the cancer had been accurately diagnosed on that first scan—when it was still localized and treatable with surgery, radiation, and chemotherapy—her chance of a cure would have been roughly 78%.
Due to the 14-month delay, the cancer progressed beyond the point of a cure. While nothing could restore her health, our firm secured a substantial seven-figure settlement to provide financial support and accountability for her and her family.
From our files: A 47-year-old man sought care for belly and back pain, and a CT scan showed a one-inch mass deep in his abdomen. The radiologist flagged it as highly suspicious and recommended a surgery consult. Five weeks later he had a second scan, and a different radiologist wrote that the mass had shrunk. That report did not mention cancer. In fact, the mass had not shrunk at all. Our expert found that the second radiologist had compared the long side of the mass on the first scan to the short side on the second, when in truth it was the same size. Partly because of that calming report, no one ordered a biopsy, and fourteen months later the mass was six inches across. Tests pointed to a germ cell tumor, which belongs to a family of cancers that often responds well to treatment. He started chemotherapy but died within weeks from blood clots in his lungs caused by the cancer. His family’s case settled for $2.7 million.
4. A result never reaches the patient
This is exactly what happened to our client in the case above. The radiologist did his job. He found the lesion, recognized the danger, and documented it twice. But the warning stopped dead on the surgeon’s desk. Radiologists call a surprise tumor like hers an incidental finding, or sometimes an “incidentaloma,” because it turns up on a scan that was ordered for some unrelated problem. When a finding like that needs follow-up, it is called an actionable incidental finding, and someone must act on it. For lung nodules found this way, radiologists look to the Fleischner Society guidelines. They are the leading standard for managing incidental lung nodules, whether solid or subsolid, which means hazy or only partly solid.
Unfortunately, breakdowns in communication that lead to delayed cancer treatment happen often. A review of 19 studies of office patients found that between 1 and 36 percent of abnormal imaging results were never followed up on, depending on the study. For lab results, the range was 7 to 62 percent, and missed cancers were among the consequences.
From our files: A 63-year-old woman went to an emergency room in Blair County with a kidney stone. Her CT scan also showed a nodule in her left lung, and the report recommended follow-up. No one told her. Fifteen months later she had stage 4 lung cancer that had spread to her brain, and she died within weeks. The full story is in our delayed lung cancer case study.
Pennsylvania passed a law to close this gap. Under the Patient Test Result Information Act, often called Act 112, an imaging center that finds a “significant abnormality” must notify the patient directly. It has 20 days from the date it sent the results to the doctor who ordered the test.
The law has blind spots, though, and they sit in the worst possible places. Act 112 leaves out scans ordered in an emergency room, scans done while you are admitted to a hospital, and ordinary plain-film X-rays. Those are the very settings where a scan ordered for one problem so often turns up another, as it did for the woman with the kidney stone. Those are the settings where we see the most misdiagnoses. When an incidental finding turns up in the ER, during a hospital stay, or on a plain-film X-ray, the 20-day notice rule does not apply at all. The duty to get the result to the patient then falls squarely back on the ordinary, common-law rules of medical negligence. Those rules reach the doctor who ordered the scan, the radiologist who read it, and the hospital whose systems should have caught the miss.
The duty to tell the patient does not rest on that one statute. In our cases, medical experts have testified that a doctor who orders a test must read the whole report. The American College of Radiology’s communication standard also has a section on when a radiologist should go beyond the routine written report. We wrote more about this problem in Incidental Findings on Imaging.
There is also a way to test the excuses. A health system may say the result was “posted to the patient portal,” or a doctor may say “I never saw the alert,” but we do not have to take anyone’s word for it. Every electronic health record (EHR) system, including the big ones like Epic and Oracle Health (formerly Cerner), keeps an audit trail. It is a kind of metadata. Think of it as a behind-the-scenes log of who opened a record and when or the electronic fingerprint that can’t be erased. In Epic it is often called the access log. In a lawsuit, we ask for that audit log, and it can show far more than whether someone opened your chart. In Epic, a new lab or radiology result lands in the doctor’s “In Basket,” and Oracle Health has a similar inbox. The audit trail can show whether the ordering doctor opened that result message, on what date, and sometimes for how long. It can also show whether the doctor acknowledged an abnormal alert or marked the result as reviewed.
5. A biopsy goes wrong
A biopsy can fail in several ways, and each one has a name. The needle can miss the tumor, which doctors call a sampling error. The lab result can fail to match what the scan or the exam showed, which is called discordant pathology and is supposed to trigger a second look. The lab can also mislabel, mix up, or contaminate the specimen, and a pathologist can simply read the slide wrong.
From our files: A 59-year-old woman had bleeding after menopause, which is a known warning sign of uterine cancer. Her doctor did a biopsy, and the lab report said there was no usable tissue to test. A nurse called and told her the biopsy found “no tissue” and that her Pap smear was “negative for cancer.” No one explained that the biopsy had failed, so she believed she was in the clear. Eight months later she had stage 3 cancer. Her case settled for $2 million. The medical practice also agreed to put written rules in place for how it gives patients their results. Read the endometrial cancer case study.
Lab mix-ups are rare, but they are real, and when they happen can be devastating. One study tested nearly 13,000 prostate biopsies and found that about 1 in 400 belonged to a different patient entirely, while about 1 in 150 were contaminated with another person’s tissue. We cover this on our page about missed or mishandled biopsies.
What a delay does to the odds
Doctors stage a cancer by how far it has spread. The table below uses National Cancer Institute figures to show the share of patients who are alive five years after diagnosis, compared with people who do not have that cancer.
5-Year Relative Cancer Survival Rates by Diagnostic Stage (NCI SEER Data)
| Cancer | Found before it spreads | Spread to nearby tissue or lymph nodes | Spread to distant organs |
|---|---|---|---|
| Lung | 65.5% | 38.2% | 10.5% |
| Colon & Rectum | 91.3% | 75.2% | 16.9% |
| Breast (Women) | Nearly 100% | 87.5% | 33.8% |
| Melanoma | Nearly 100% | 76.0% | 34.0% |
| Prostate | Nearly 100% | Nearly 100% | 40.1% |
| Cervix | 91.8% | 64.0% | 20.5% |
| Uterus | 94.9% | 70.1% | 19.9% |
Source: National Cancer Institute, SEER Cancer Stat Facts. Five-year relative survival, 2016 to 2022.
Look at the first column and then the last one, the gap between them is what a delay can cost a patient.
Time matters after diagnosis too. A review of 34 studies and more than 1.2 million patients looked at seven cancers: bladder, breast, colon, rectum, lung, cervix, and head and neck. It found that each four-week delay in cancer surgery was linked to a 6 to 8 percent higher risk of death. The figure was 8 percent for breast cancer surgery and 6 percent for colon cancer and for head and neck cancer. The estimate for lung cancer surgery pointed the same way, but the data were too thin to be sure.
No table can tell you what a delay did in your own case. Every patient is unique. That takes a cancer doctor who sits down with your scans, your slides, and your records, and it is the first thing we ask our experts to do.
The cancers most often missed or found late
We have more comprehensive content on each cancer below, so start with the one that fits your situation.
Lung Cancer
Lung cancer had the highest error rate of the five cancers in the Johns Hopkins study, and about half of all lung cancers are not found until they have spread to distant organs. The story we see most often is an incidental nodule that shows up on a scan ordered for some other reason, and then no one follows up. Radiologists treat the Fleischner Society guidelines as the leading standard for incidental solid and subsolid lung nodules. For a solid nodule larger than 8 millimeters, those guidelines tell doctors to consider a repeat CT in three months, a PET scan, or a biopsy. Read more: delayed diagnosis of lung cancer and lung nodule follow-up failures.
Breast Cancer
Caught early, breast cancer is one of the most survivable cancers there is. Mammograms are less reliable in women with dense breasts, and the National Cancer Institute says false-negative results are more common in that group. A lump you can feel deserves a real workup, even after a normal mammogram. Read more: delayed diagnosis of breast cancer.
Colon and Rectal Cancer
Screening can find this cancer early, and it can even find growths before they turn into cancer. Younger adults are a growing concern, because colorectal cancer has been rising about 3 percent a year in people under 50. Three out of four of those younger patients already have advanced disease when it is found. Read more: colon cancer misdiagnosis.
Prostate Cancer
Most prostate cancer grows slowly, and nearly all men whose cancer is found early survive it. Once it spreads to distant organs, five-year survival falls to about 40 percent. A prostate case often comes down to the PSA blood test: whether it was ordered, whether it was rising, and whether anyone acted on it. Read more: prostate cancer misdiagnosis.
Melanoma and other Skin Cancers
Melanoma is easy to cure early and hard to treat late, and it is also hard to read under a microscope. In one study, 187 pathologists read sets of skin biopsy slides, and for the in-between categories they matched the expert answer less than half the time. Read more: delayed diagnosis of melanoma, squamous cell carcinoma, and basal cell carcinoma.
Cervical Cancer
Pap and HPV tests can find changes in the cervix years before they become cancer. These cases come from tests that were never offered, slides that were misread, and abnormal results that no one followed up. Read more: cervical cancer screening failures in Pennsylvania.
Uterine and Endometrial Cancer
Bleeding after menopause is the classic warning sign, and it needs a clear answer. The biopsy case above shows what can happen when no one explains to the patient that a biopsy has failed. Read more: delayed diagnosis of endometrial cancer.
Ovarian Cancer
The National Cancer Institute lists gas, bloating, and constipation among the signs of ovarian cancer, and those same symptoms have many harmless causes. Early ovarian cancer may cause no symptoms at all, and by the time signs appear, the cancer is often advanced. Read more: delayed diagnosis of ovarian cancer.
Brain and Spinal Tumors
Headaches, vision changes, hearing loss, and seizures can all point to a tumor, and the answer is often a single scan away. Read more: brain cancer misdiagnosis.
Germ Cell and Testicular Cancer
These cancers often respond well to treatment. The National Cancer Institute calls testicular cancer “highly treatable, usually curable,” which is what makes a missed one so hard for a family to accept. The abdominal tumor in the misread scan case above was most likely a germ cell tumor.
Other Cancers we Review
When a missed cancer is medical malpractice in Pennsylvania
A late diagnosis is not always malpractice. To win a cancer misdiagnosis lawsuit in Pennsylvania, you have to prove four things.
- A doctor-patient relationship: The doctor or hospital provided you medical care.
- Care below the standard: A reasonably careful doctor or hospital in the same field would have done something different, such as ordering a test, reading the full report, or picking up the phone.
- Increased risk of harm: The delay made your situation worse or lowered your odds of survival.
- Real damage: You went through harder treatment, lost time, lost income, or lost someone you love.
The third one is where cancer cases are won or lost. Defense lawyers like to argue that the patient might have died anyway, so the mistake should not count. Pennsylvania’s Supreme Court took up that argument in 1978, in a case called Hamil v. Bashline.
The Court adopted the rule in Section 323(a) of the Restatement (Second) of Torts, a respected summary of American injury law. It says that a person who takes on the job of protecting someone else must use reasonable care. If his carelessness increases the risk of harm, he can be held liable. In a malpractice case, the rule works like this. Your medical expert must be able to say, to a reasonable degree of medical certainty, that the doctor’s mistake increased your risk of harm. If the expert can say that, a jury decides whether the increased risk was a substantial factor in what happened to you. The Court confirmed the rule in 1990 in Mitzelfelt v. Kamrin. In plain terms, no one has to prove that earlier treatment would have worked for sure.
You will often see this called the “loss of chance” doctrine, and that label can mislead. In some other states, loss of chance works like a math problem: the patient has to prove a better-than-even chance of survival to begin with, or the award is cut to match the percentage of chance that was lost. Pennsylvania’s “increased risk of harm” standard is framed differently. The question is whether the provider’s negligence increased your risk of harm, and once an expert says that it did, the jury decides whether that increased risk was a substantial factor in causing the harm. The Hamil court quoted an older case to make the point: “If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.” We explain the rule further on our loss of chance page.
On the other hand, a bad outcome is not proof of bad care. Some cancers hide and some grow fast even when every doctor does everything right.
Careless care is not proof of a case, either. Our firm has turned down cases where even though the doctor plainly dropped the ball, the cancer had already spread before the first chance of diagnosis. The mistake was real, but it did not change the outcome. Our guide to what qualifies as medical malpractice in Pennsylvania goes deeper on this point.
The medical experts behind a cancer misdiagnosis case
You cannot bring a cancer misdiagnosis claim in Pennsylvania on a hunch. You must have medical experts on board who support your case. The medical malpractice claims we file usually require several cancer misdiagnosis experts, each of whom answers a different question. Here is how my firm builds the case, step by step.
The anatomy of an expert investigation
- Get the medical records. We obtain all of your medical records. We review them, organize them, and highlight the key records to proving your case.
- Get the raw images and slides. We ask for the actual scan files, which are stored in a format called DICOM, along with the glass pathology slides and, when we need them, the tissue blocks. A printed report only tells us what someone said about a scan, and we want to see the scan itself. If a provider will not hand them over, we can subpoena them once suit is filed.
- Have specialists read the records and imaging fresh. Board-certified internists, urologists, emergency medicine, radiologists and pathologists who had no part in your care go back to the original records and studies and review them with fresh eyes.
- Stage the cancer back in time. A cancer doctor, called an oncologist, works out what stage the tumor was on the day it was missed, what treatment you would have been offered then, and how the delay changed your odds of survival.
- File the certificate of merit. Within 60 days of filing your medical malpractice lawsuit, we must certify in writing that a qualified medical professional has reviewed the case and found a reasonable probability that the care fell below the standard and caused harm. This is called a Certificate of Merit. The MCARE Act adds that an expert who testifies about the standard of care must generally practice or teach in the same specialty as the doctor being sued, or in one with a similar standard of care.
In our vascular surgeon case, we retained a clinical professor of surgery from Harvard Medical School with over 40 years of operating experience. His testimony was unequivocal: a surgeon ordering a scan is responsible for the entire result, not just the blood vessels.
That established the breach of care. But that brings us to the next critical hurdle—proving what that failure actually cost our client.
Clients often ask us: how can anyone prove what stage my cancer was a year ago?
The answer lies in objective pathology and imaging. The prior scans, biopsy slides, and tissue samples still exist. Oncology and radiology experts can pull the original imaging, measure the tumor down to the millimeter on the date it was missed, analyze its cellular doubling rate, and compare it directly to what was found later.
Who can be held responsible
A missed cancer often passes through several sets of hands, and any of these people or companies may share the blame.
- A family doctor or internist who did not act on a symptom, order a test or follow up on a result.
- A specialist who ordered a scan and did not read the whole report.
- A radiologist who missed a finding, or who saw it and did not flag it.
- A pathologist or lab that misread or mishandled a biopsy.
- A hospital or health system, which can be held responsible in two different ways.
The first is vicarious liability, which lawyers also call respondeat superior. It means a hospital answers for the mistakes of its own employees, such as nurses and employed doctors, even if the hospital itself did nothing wrong.
The second is direct corporate negligence. In Thompson v. Nason Hospital, the Pennsylvania Supreme Court held that a hospital owes its patients duties of its own, and one of them is to adopt and enforce adequate rules and policies to ensure quality care. Some hospitals have no working system to track abnormal results or to make sure incidental findings reach the patient. A hospital like that can be liable for the failure as an institution. In our case above where the patient was never told about her abnormal results, our radiology expert said the hospital system should have had a policy for passing along critical results.
What a cancer misdiagnosis lawsuit can recover
A lawsuit can recover money for what the delay cost you and your family. That includes your past and future medical bills, your lost wages and lost ability to earn, your physical pain and emotional suffering, the loss of your ability to enjoy life, and a husband’s or wife’s loss of companionship.
When a patient has died, Pennsylvania law allows two claims. The first is a wrongful death claim, which is for the spouse, children, or parents, and the second is a survival claim, which belongs to the estate and covers what the patient went through before death.
Pennsylvania puts no cap on compensatory damages in a case against a private doctor or hospital. Compensatory damages are the ones meant to make up for a loss, which means your medical bills, your lost earnings, and your pain and suffering. Article III, Section 18 of the state constitution does not let the Pennsylvania legislature limit them.
Punitive damages are a different matter. They are meant to punish, and they are rare, because they require willful or wanton conduct or reckless indifference to the rights of others. Ordinary carelessness is not enough. The MCARE Act (40 P.S. § 1303.505) limits punitive damages against an individual physician to 200 percent of the compensatory damages, except in cases of intentional misconduct. It also sends 25 percent of any punitive award to the Mcare Fund.
The settlements my firm has published in cancer misdiagnosis cases include $2.7 million, $2 million, $1.7 million, and $1.5 million. We have resolved many other delayed diagnosis of cancer cases for many millions of dollars. Every case is different, and past results do not predict what any other case is worth. You can see more on our case results page.
How long do you have to act before time runs out?
The basic rule in Pennsylvania is two years, but cancer cases bend that rule in both directions.
Pennsylvania Filing Deadlines: Living Patients vs. Death Claims
| Question | If the patient is living | If the patient has died |
|---|---|---|
| Basic Deadline | Two Years | Two Years |
| When the clock starts | When you knew, or reasonably should have known, that you were harmed and what caused it | The date of death |
| Does the discovery rule apply? | Yes, but it is not automatic | No |
| Main authority | 42 Pa.C.S. § 5524 and the discovery rule | MCARE Act § 513(d), DuBose v. Quinlan, and Reibenstein v. Barax |
| Exception | Does not apply | Only if someone lied about or hid the medical cause of death |
- If you are living: The discovery rule can give you more time, but the other side will argue that you should have figured out the mistake sooner, and a judge or jury ultimately decides who is right.
- If your family member died: The deadline is strict. The deadline is two years from the date of death, no exceptions. In DuBose v. Quinlan in 2017, the Pennsylvania Supreme Court held that the two-year period covers both wrongful death and survival claims and starts on the date of death. In Reibenstein v. Barax in 2022, the Court held that the discovery rule does not pause that clock.
- If the patient is a child: Different rules apply, so ask a lawyer before you assume anything about the deadline.
Please do not try to work out your own deadline from a web page, including this one. Call a lawyer and get a real answer. More detail is on our statute of limitations page.
What happens when you call our law firm about a cancer misdiagnosis
Most people are nervous about calling a lawyer. Here is what we do to make the intake process as easy and comfortable for you as possible.
First, we listen. You or someone you love is sick, or gone, and we are sorry you are going through it, because nothing about it is fair. We gather all of the facts from your point of view.
Then we make a promise: we are going to get you answers. Maybe there is a case, and maybe there is not. Either way, you will know what happened and why, because you should not have to wonder about it for the rest of your life. We do everything we can to give you risk-free peace of mind.
After that, we get to work.
- We get the records. That means all of them, including the office notes, hospital records, the scans themselves, the pathology slides, and the messages in your patient portal.
- We review them in our own office first. One of the medical malpractice lawyers in our firm goes through the records in detail. Often, we will have our on-staff nurse weigh in.
- We send them to leading experts from around the country who know the cancer and the kind of doctor involved.
- We tell you what they said, in plain words.
You pay nothing for any of this, because we work on a contingent fee, which means we earn a fee only if we recover money for you. We advance all costs of the case, and you owe nothing if there is no recovery.
We are a small firm on purpose, and our misdiagnosis attorneys take a limited number of cases so that a partner works on yours. When you hire a misdiagnosis lawyer here, that lawyer knows your file. Your case will always be handled by a seasoned medical malpractice lawyer. Never will you be passed off to a case manager.
What you can do right now
- Keep treating: Your health comes first, and nothing on this page should slow down your care.
- Ask for your records: Federal law gives you a right to copies. Ask for the medical records and radiology imaging on a disc, not just the written radiology reports.
- Save everything: Keep your portal messages, letters, appointment cards, text messages, and voicemails.
- Write down the timeline: List when the symptoms started, who you saw, what they told you, and what tests you had.
- Call sooner rather than later: Records get harder to find as time passes, and the deadlines do not wait.
Frequently Asked Questions About Cancer Misdiagnosis
Lung cancer, by the best estimate we have. A Johns Hopkins study published in BMJ Quality & Safety put the diagnostic error rate for lung cancer at 22.5 percent, which was the highest of the five cancers it studied. Melanoma came next at 13.6 percent, then colorectal cancer at 9.6 percent, breast cancer at 8.9 percent, and prostate cancer at 2.4 percent. The same five cancers lead the list in malpractice claims.
While they sound similar, these three medical errors describe different ways a doctor can get a cancer diagnosis wrong. The main difference comes down to what the doctor decided and how much time was lost.
- Misdiagnosis (Wrong Diagnosis): This happens when a doctor diagnoses you with the wrong condition entirely. For example, a doctor might tell a patient with lung cancer that they only have bronchitis, or mistake a malignant breast lump for a harmless cyst. Because the doctor focuses on the wrong illness, the real cancer continues to grow untreated while the patient may receive medication or procedures they do not need.
- Delayed Diagnosis (Diagnosis Arrived Too Late): In this situation, the doctor eventually finds the cancer, but it took far longer than it should have. This often happens when a provider ignores clear red flags, forgets to order standard imaging, or fails to follow up on abnormal lab results. While the patient eventually gets the right answer, the delay may allow the cancer to spread to a more advanced, harder-to-treat stage.
- Failure to Diagnose (No Diagnosis at All): This occurs when a doctor misses the illness completely and gives no diagnosis. A patient visits a physician with symptoms, but the doctor dismisses them, tells them they are completely healthy, or fails to perform basic screening tests. The patient walks away believing nothing is wrong, leaving the cancer undetected until severe complications develop later on.
In a medical malpractice case, the critical question is whether a reasonably careful doctor in the same situation would have caught the cancer sooner, and whether that error harmed the patient’s prognosis.
Yes, although it is uncommon, and it happens in two main ways. A lab can mix up samples, and in one study of nearly 13,000 prostate biopsies, about 1 in 400 samples belonged to a different patient. A pathologist can also read a slide wrong. When doctors at MD Anderson Cancer Center took a second look at 2,718 outside cases, they had a major disagreement with the first diagnosis in 6.2 percent. A major disagreement does not always mean there was no cancer, because sometimes it means the type or the stage was wrong. Before major surgery or chemotherapy, you can ask for a second pathologist to review your slides. If you were treated for a cancer you never had, you may have a case.
Not by itself, because some cancers are found late even with good care, and about half of all lung cancers have already spread to distant organs when they are diagnosed. The real question is whether there was an earlier chance to catch it. These are the signs that make me want to take a closer look:
- You had a scan of that part of your body in the past few years.
- You had an abnormal test result that no one explained to you.
- You reported the same symptom more than once.
- A new doctor says the cancer was visible on an older scan.
There is no set number, because it depends on the type of cancer and on what changed during the delay. Some cancers move fast, and the National Cancer Institute says that small cell lung cancer, left untreated, has a median survival of only two to four months. Others, like most prostate cancers, grow slowly. In the cancer cases described on this page, the delays ran from 8 to 15 months, and in each one the cancer grew or spread in that time. A short delay with no change in stage or treatment is probably not a winnable medical malpractice case because there is no provable harm.
It can be, and in our cases medical experts have testified that a doctor who orders a test must read the whole report and act on it. Two of the cases our firm handled that we discuss above turned on that exact failure, and a third turned on a result that was passed along with no explanation. In our view, posting a result in a patient portal is not the same as telling you what it means and what to do next. Pennsylvania law also requires imaging centers to notify patients directly of a significant abnormal finding in many outpatient settings. Whether the failure adds up to a case depends on what the silence cost you.
Yes, because these cases are not only about death. A delay can mean a bigger surgery, chemotherapy and radiation you would not have needed, or a worse prognosis. It can mean months out of work and worse odds going forward, and those are real harms. Do not assume you can wait until treatment is over, because the two-year clock may already be running.
No honest lawyer can give you a number on the first call. The value of a case depends on a handful of things.
- How much the delay changed your stage, your treatment, and your odds.
- Your age, your family, and your work.
- Your medical bills, past and future.
- How strong the proof is.
- The insurance available. Pennsylvania doctors generally carry $1 million in coverage per occurrence. Half comes from a private insurer and half from a state fund called Mcare, and hospitals carry coverage of their own.
One thing does not limit the value. Under Article III, Section 18 of the Pennsylvania Constitution, there is no cap on compensatory damages against a private doctor or hospital. That covers both economic losses, such as medical bills and lost earnings, and non-economic losses, such as pain and suffering, so a jury is free to award what the harm is truly worth. The only cap is on punitive damages, which are rare. The MCARE Act limits them against an individual physician to 200 percent of the compensatory award.
The cancer misdiagnosis settlements listed on this page run from $1.5 million to $2.7 million, but every case is unique. Your case may be worth more. We can only give you a true sense of the value of your claim after we’ve met with you, reviewed your medical records, and discussed the case with our medical experts.
There are four common reasons, and none of them means you were wrong to ask.
- Causation: The delay did not change the outcome, because the cancer had already spread before the first missed chance or because the stage of your cancer did not change between the time of the negligence and the time your cancer was later discovered.
- Standard of care: The care was reasonable, even though the result was terrible.
- The deadline: Too much time has passed to file.
- Economics: The harm, thankfully, was limited. These cases need several medical experts and cost a great deal to bring, and I will not take a case where the costs would eat up what the client recovers.
When we say no, we explain why. You will know what we found and how we got there.
Where we work
Our firm is based in Pittsburgh, Pennsylvania. We handle cancer misdiagnosis cases across Pennsylvania, and most of our work is in the western half of the state. That includes Allegheny, Beaver, Blair, Butler, Cambria, Clarion, Clearfield, Crawford, Erie, Indiana, Mercer, Somerset, Washington, and Westmoreland counties, and the cities of Altoona and Johnstown.
Under Pennsylvania’s venue rules, we can often file suit in counties with favorable court systems like Allegheny County even if some of your medical treatment took place in an outlying county, provided the hospital or health system does sufficient business there.
You do not have to come to us, because we will come to you, or we can talk by phone or video.
Call (412) 281-4100 or send us a message. I will get to work on your answers.
About the author
Brendan B. Lupetin is a founding partner of Lupetin & Unatin, LLC, in Pittsburgh. He has represented patients and families in medical malpractice cases since 2005. He is a Fellow of the American College of Trial Lawyers, a member of the American Board of Trial Advocates, and an Adjunct Professor of Law at the University of Pittsburgh School of Law. Best Lawyers named him the 2026 “Lawyer of the Year” in Pittsburgh for Personal Injury Law – Plaintiffs. He also hosts the Just Verdicts podcast.
Free Consultation — No Fee Unless We Win
Lupetin & Unatin, LLC represents Pennsylvania patients harmed by physicians who failed to meet the standard of care. If you or a loved one suffered from delayed diagnosis or misdiagnosis of cancer, contact us for a free case evaluation.