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Counsel That You Can Trust & Depend On


Guy DiMartino
Nov. 4, 2014

Indiana Medical Malpractice Lawyer discusses a recent verdict upheld by court of appeals and the difficulties in failure to timely diagnose colon cancer malpractice cases.

The failure to timely diagnose cancer cases are difficult to prove for a number of reasons. First, jurors have a tendency to rationalize how they would react under same or similar circumstances as the plaintiff – for instance, a juror would say – I wouldn't do it that way – I would have gotten a second or third opinion – etc.

In Morse v. Davis, the Indiana Court of Appeals upheld a 2.5 million dollar verdict that was reduced to the statutory cap of 1.25 million.


  • In 2004, a 35 year old male, goes to a gastroenterologist, with complaints of problems after meals including nausea, occasional vomiting, occasional diarrhea and blood in his stool and upper stomach pain. The key to this symptoms complex is “blood in stool.”

  • The doctor charted that the patient's mother was a former patient who the doctor had treated in the past for cancer. The key to this part of the history is the patient had a “family history of colon cancer. “

  • The doctor evaluated the patient, did a test where he looks at the upper GI tract, and performed a hemoccult test. All these tests were reported as normal.

  • The doctor did not do a colonoscopy to see if there was something in the lower GI tract to account for the patient's complaint of occasional rectal bleeding. The key to this is the doctor never ruled out a cause for the patient's reports of rectal bleeding.

  • The doctor told to the patient to stop taking Aleve and he prescribed some medication.

  • The patient followed up with doctor one year later. There was a dispute regarding the patient's complaints. The doctor's record did not document “rectal bleeding,” the patient testified that he reported continued rectal bleeding to the doctor.

  • The patient moved to Arizona and saw another GI doctor in 2006. During the visit, the patient complained of chronic diarrhea for 2 to 3 years with occasional “blood in his stool.”

  • The GI doctor did a colonoscopy and he found cancer in the sigmoid colon.

The Trial

As with all cases there were factual disputes. Specifically, there was a factual dispute as to whether the patient reported a family history of cancer to the GI doctor. The jury probably came down on the side of the patient because the GI doctor noted in his chart that the patient's mother was a former patient – and the record showed that she was treated for cancer. The other major factual dispute was whether the patient reported continued blood in his stool at his one year follow-up in 2005. Again, the jury had a make a factual determination as to what transpired during that visit because the facts were in dispute.

My Analysis

The rule in medicine is clear. When a patient presents with blood in the stool a doctor has a duty to rule out cancer – especially with a family history of cancer in the GI tract. I do not believe the case turned on this issue, however, because the facts were in dispute. This case like all medical malpractice cases turn on the credibility of the patient and the doctor. The jury had to make a credibility determination. If the jury did not believe that the patient reported blood in his stool in 2005 – the jury most likely would have ruled in favor of the doctor. Jury members are people and they make their determinations on gut and instinct and when a patient's story makes sense to them – the jury will side with the patient. However, when the story does not make sense or the jury believes the patient is embellishing, hiding something or otherwise not truthful, the jury will go against the patient.

Indiana medical malpractice law is complex. If you have any questions about a failure to timely diagnose colon cancer claim, call our Michigan City medical malpractice lawyer at (219) 874-4878 or fill out the internet consultation form on the right.