02 Feb Cancer Misdiagnosis Case

Typically, medical negligence claims involving cancer allege a failure to diagnose the cancer in a timely manner.  However, the converse may also occur.  In Kooijman v. Bradshaw, 2016 BCSC 2316, the Plaintiff alleged the Defendant pathologists wrongly diagnosed her with thyroid cancer.  She further alleged this resulted in her suffering a serious nerve injury during a surgery to remove the cancer.  She argued that the pathologists should have diagnosed the cells as suspicious, rather than cancerous. Had they done so, she would have been offered less invasive treatment options and if she had opted for one of those options she would not have sustained nerve damage.

To assess negligence, the Court had to consider two questions:

  • Did the pathologists breach the standard of care owed to the Plaintiff?
  • If the Plaintiff had other treatment options, would she still have had the surgery?

Regarding the first question, the Court found that two of the three pathologists breached the standard of care.  They ought to have reported that the slides were “barely” adequate for interpretation and that another biopsy ought to be taken.  The best diagnosis was that it was suspicious for cancer, in which case the Plaintiff would have been presented with other treatment options.

This led to the next question –  Would the Plaintiff still have had the surgery if the diagnosis was suspicious?  The court found that she would have.  The evidence was that the other options were riskier than the surgery and her doctor would have still recommended the surgery.  The Plaintiff testified that she trusted her doctor and would have followed his advice.

As a result, the Court dismissed the case against the pathologists and the Plaintiff was not entitled to any damages.