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Battling ageism in cancer negligence cases: many people view the elderly as having little to live for and even less to offer society. Uncovering these assumptions is step one in achieving justice for an older client whose cancer went undiagnosed or undertreated for too long.

Article Excerpt
Trial lawyers are in the business of anticipating prejudices. As soon as a new case arrives, they consider how jurors will assess the client and the case.

When the plaintiff has suffered injury because of a doctor's failure to diagnose cancer or provide adequate treatment, the lawyer can count on jurors to hold certain biases. They have been conditioned to believe that medical negligence plaintiffs bring frivolous claims against heroic physicians who can't be blamed for their inability to save the patient from a disease's inevitable progression. Seasoned plaintiff lawyers know these biases well and welcome the chance to show the jury just how wrong these attitudes are.

Elderly cancer patients regularly face negligence, and when the plaintiff is elderly, another bias enters: ageism. Ageism is directly responsible for incomplete examinations, delayed diagnoses, and undertreatment of these patients. (1)

Many Americans regard the elderly in a less-than-charitable light. People assume that because old people typically don't work, they aren't "contributing to society," and their days of achievement are long over. Their lives are spent watching television, waiting for visitors, and perhaps slipping in and out of dementia, awaiting a fast-approaching death.

This view of the elderly makes every aspect of a medical malpractice case more difficult. It significantly reduces potential damages because a jury's assessment of damages, both non-economic and economic, is often guided by the patient's life expectancy.

The standard of care is also affected. What is clear malpractice in the case of a younger plaintiff is often less clear when the plaintiff is elderly. Causation, too, becomes cloudier. The presence of other medical conditions, along with the weakness and fragility of old age, can complicate the case.

Defense attorneys often take advantage of ageist attitudes. Obviously, no defense lawyer would overfly disparage an elderly plaintiff because of advanced age or failing health. However, he or she might subtly seek to cultivate ageist thinking among jurors, using rhetoric and the testimony of medical experts to exploit this bias.

Nationally, plaintiff attorneys have only a 37 percent chance of winning a medical malpractice case. (2) Why, then, should a trial lawyer expend resources on a case that is almost certain to be more difficult to win than the average? There are two reasons: because the elderly need us, and because these cases can be won.

We are a nation of ageists. That our laws specifically forbid discrimination against the elderly is a testament to the prevalence of this phenomenon in American society. Indeed, a list of the books in which ageism's influence is discussed would itself fill a book. (3) Knowing this and understanding how ageist attitudes affect the care of the elderly can help your case succeed.

Cancer in the elderly

About 60 percent of new cancers are diagnosed in elderly Americans--those age 65 and older. (4) Breast cancer is the most common cancer among women; prostate cancer is the most common cancer--other than skin cancer--among men. (5)

Elderly women account for 50 percent of newly diagnosed breast cancers. By 2030, the number of cases is expect ed to double. (6) A 2003 study projected that about 35 percent of women who develop invasive breast cancer will be over the age of 70 when it is diagnosed. (7) Over 97,000 elderly women died from breast cancer between 2000 and 2003. (8)

Prostate cancer, too, affects a large portion of the aging population. (9) Over 75 percent of new prostate cancers occur in elderly men, and this incidence reaches 82 percent among the combined male populations of developing countries. (10) Most prostate cancer is slow-growing, and intervention may not be warranted. The more aggressive form is...

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