Englishman spared horrible death -- and he's looking for someone to sue

You've probably read recently about the case of John Brandick, the 62 year old man from Cornwall, who was told he had pancreatic cancer.

Here's a link to the Reuters story about Mr. Brandick: Reuters reports that Brandick quit his job, gave away nearly all of his possessions and stopped paying the mortgage on his home. A year after receiving what he thought was a death sentence, Brandick received an unexpected reprieve: The deadly tumor turned out to be a "non-life-threatening inflammation of the pancreas."

But by this time, however, Brandick was left with "little more than the black suit, white shirt and red tie that he had planned to be buried in."

Brandick wants his money back. Reuters quotes him: "I'm really pleased that I've got a second chance in life... but if you haven't got no money after all this, which is my fault -- I spent it all -- they should pay something back."

Who, I wonder, is "they"?

I of course venture no prediction about the success or failure of Mr. Brandick's potential suit against the hospital that gave him the erroneous diagnosis. His chances in such an action are governed by the laws of Great Britain -- and my license does not extend beyond the boundaries of Illinois. (See disclaimer at the bottom of this page.)

I have speculated, a little, on how Mr. Brandick might fare if he were a citizen of Illinois.

What is the essence of his claim? That he is still alive?

Illinois rejected the idea of a tort of "wrongful life" in cases such as Goldberg v. Ruskin, 113 Ill.2d 482, 499 N.E.2d 406 (1986), and Siemieniec v. Lutheran General Hospital, 179 Ill.2d 80, 688 N.E.2d 130 (1987). Essentially, in "wrongful life" cases damages were sought for the costs of rearing a damaged child on the theory that, if the medical professionals had only properly advised the parents, the child would never have been born. (There might be a claim for "wrongful conception" or "wrongful pregnancy" in Illinois. See, Williams v. University of Chicago Hospitals, 179 Ill.2d 80, 688 N.E.2d 130 (1997) (parents in such a case may recover "damages for the cost of the unsuccessful [sterilization] operation, pain and suffering, any medical complications caused by the pregnancy, the costs of the child's delivery, lost wages, and loss of consortium" -- but not the costs of rearing a normal, healthy child or, as in Williams, the cost of rearing a child born with a congenital disorder.)

But we have moved far from Mr. Brandick's case. The essence of his complaint is not that he's alive... but that he acted to his detriment because of an erroneous diagnosis.

There are, as you may well imagine, all sorts of cases in Illinois involving misdiagnosis of cancer. Almost all, however, concern the failure to timely diagnose a cancer that was already there or the misdiagnosis of one form of cancer as another form. In either of these cases, the claim is that proper treatment was delayed, often beyond the point at which the claimant could hope for recovery.

But there have been at least a few Illinois cases in which a doctor has erroneously diagnosed a benign tumor as cancerous -- I say there must have been a few because I know personally of one, although the Appellate Court opinion is not reported -- but the gist of that such an action is to recover damages for the cost of the resultant unnecessary treatment and the associated pain and suffering caused by that treatment.

Mr. Brandick apparently did not seek treatment for his 'cancer' -- he treated himself to an end of life party... a party that ended suddenly when he found he was not yet going to die... and he had only the suit on his back left.

If Mr. Brandick were in Illinois, I don't think I would like his chances for any recovery in his case.

And I think I would persist in this opinion even if it could be readily shown that the misdiagnosis of the non-life-threatening inflammation of the pancreas as pancreatic cancer did not meet the standard of care.

Now that is the prerequisite for any successful medical malpractice suit in Illinois. But there are other considerations that might come into play were Mr. Brandick's situation repeated in Illinois: Would the damages recoverable by his suit make the case worthwhile for any Illinois lawyer?

I do not handle medical malpractice cases now and I do not expect to handle medical malpractice cases in future. The very few attorneys in Illinois who can properly handle such a case for plaintiffs are both extraordinarily specialized and have the resources to pursue those few cases that they accept: Medical malpractice litigation, at least in Illinois, is very expensive and -- although there are competing statistics out there provided by lobbyists for one interest group or another -- my observation is that early settlements are rare. Mr. Brandick admits up front that no one made him spend all his money -- so, no, if Mr. Brandick were in Illinois, I wouldn't like his chances.

Now, for any creative attorneys out there who may stumble upon this: Have you a different opinion? Would his prospects be any brighter in the jurisdiction where you live and practice?