CASE 391

A 76-year-old woman was the restrained passenger in a car stuck by a second vehicle. Paramedics took her to a local emergency department where a chest X-ray revealed two rib fractures. All other testing was negative and she responded favorably to pain medication prior to discharge. Approximately two months later, she developed a painful cough that she reported to her physician. A subsequent X-ray found a 3-cm mass in her right upper lobe that proved to be an advanced squamous cell lung cancer with metastatic spread. Despite surgery and chemotherapy, she died 3 months later. A review of her ER chest X-ray revealed that the tumor was present, but missed, on the original interpretation.

Elite Medical Experts’ Case Strength Score™

Elements of Negligence: 3
Case Economics: 5
Subjective Appeal: 8

Case Strength Score™ Interpretation:

CSS ≤ 16:
    Clearly defensible case. Plaintiff theory is critically flawed.
CSS 17-20: Defense likely to prevail. Plaintiff may explore cautiously.
CSS 21-23: Strategic elements favor plaintiff. Moderate risk for defense.
CSS 24-30: Strong plaintiff case. Defense at high risk of loss.

Total Score


Nearly all oncology (cancer) cases allege that a delay in diagnosis or treatment resulted in harm. Consequently, oncologic causation is the primary determinant of case strength. In Case #391, the woman ultimately succumbed to metastatic squamous cell carcinoma. Given the fact that her diagnosis was only delayed by 60 days, it is far more probable than not that her cancer was at the same dismal stage 60 days earlier. In fact, most cancers (aside from leukemia, invasive tumors, and a few other exceptions) do not require urgent treatment at all. The lethality of the woman’s cancer was affirmed by her failure to respond to treatment, and this supports the assertion that earlier treatment would not have altered her outcome. This is not unexpected since metastatic squamous cell lung carcinoma is a particularly aggressive form of cancer with high immediate mortality and a 5-year survival rate of only 4.2%.

Despite obvious breach and harm, the case would have a high probability of collapsing on causation. This gives an overall low score [3] for Elements of Negligence. The Subjective Appeal is strong [8] since the trier of fact would easily appreciate an obvious X-ray misread that was plainly visible to a layperson. The overall economics are precarious [5] since at least three experts would be required (Oncology, Radiology, Emergency Medicine) and the compensable harm is tempered by the woman’s age.

For all of these reasons, the case may seem strong at first glance, but a Case Strength Score of 16 argues that the case should be rejected.

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