Lung cancer is the top cancer killer in the United States. Each year the cancer is diagnosed in more than 200,000 Americans, and more than 150,000 Americans die from the disease. About 85 to 90% of lung cancers are known as “non-small cell lung cancer,” a name which covers several subtypes of lung cancer that are grouped together because of similarities in the approach to treatment and outlook.

Patients with stage 3b non-small cell lung cancer are typically not offered surgery and treated only with chemo-radiation therapy. These patients have a five-year survival rate of only about 10%. A new study, however, indicates that certain patients with lung cancer that has spread throughout the chest could live longer by undergoing surgery to remove diseased lung tissue instead of only receiving radiation therapy.

You can read an abstract of the study here:

[Role for Surgical Resection in the Multidisciplinary Treatment of Stage IIIB Non–Small Cell Lung Cancer](http://www.sciencedirect.com/science/article/pii/S0003497515002416)

The study evaluated data from the National Cancer Database on over 9,000 patients with stage 3b non-small cell lung cancer who underwent a combination of treatments between 1998 and 2010. Most patients had chemo and radiation therapy, while a little less than 20% of patients had surgery in addition to those treatments. The average survival in the surgical group was 26 months, compared to just over 16 months in the chemo-radiation group.

Doctors involved in the study remarked that a 10-month increase is relatively large. The researchers however, also emphasized the limitations of the study, pointing out that not all characteristics of the individuals in the study could be analyzed. They also raised the consideration that, even if it were a treatment desired, some patients may be too sick for surgery.

This research reminds us of a significant legal decision in Washington medical malpractice precedent: Herskovits v. Group Health Co-operative of Puget Sound.

In the Herskovits case, a doctor negligently failed to diagnose a patient’s lung cancer in a timely fashion. This negligent failure to diagnose deprived the patient of a chance to pursue therapy that might have extended his life. Even with prompt therapy, however, the patient’s survival probably would not have been extended.

One requirement of a medical malpractice lawsuit is proving “causation,” which means the plaintiff’s injury is the result of the substandard care. In cases like the patient in Herskovits that requirement could not be satisfied because the plaintiff was unable to prove that, more probably than not, compliance with the standard of care would have prevented their injury.

The Herskovits Court thankfully decided to permit a claim based on a loss of chance doctrine. This means that defendants are liable for the value of the percentage “chance” that the plaintiff lost as a consequence of the defendant’s negligence. To use the facts of that case as an example, the defendant was liable for 14% of the plaintiff’s injury, because the delay had reduced his survival odds from 39% to 25%.

Practically speaking, loss of chance is a difficult theory to succeed with for several reasons. One of those reasons is because it relies on an expert to determine just how much “chance” was lost – a determination that is obviously open to a lot of argument. Defendants will often argue that, not only were they not negligent, but that even if other action had been taken, the patient wouldn’t have had any better odds at survival.

As more research comes out, like the study referenced in this blog post, it may be easier to quantify a patient’s loss of chance at a better outcome. Peer-reviewed studies can help determine what harm was the result of the defendant’s negligence, even if statistically the plaintiff is unlikely to survive. Hopefully, with more information there will be fewer situations where defendants’ escape liability for their negligence simply because their victims were already facing deadly diseases such as lung cancer.