FailureToDiagnose: A Growing Pattern Of Medical Malpractice

Discussion in 'Fibromyalgia Main Forum' started by lenasvn, Aug 26, 2006.

  1. lenasvn

    lenasvn New Member

    Interesting info from usalaw.com

    Failure-To-Diagnose: A Growing Pattern Of Medical Malpractice

    Remember the three monkeys: hear no evil, see no evil and speak no evil? The monkeys appear to have climbed on the back of some doctors who increasingly miss making a timely diagnosis that would allow a patient to have meaningful treatment. They simply hear no complaint or see no tumor or speak no referral when their patient comes in with a new problem.
    Approximately 40 percent of medical malpractice claims are now based on a failure-to-diagnose a medical condition, according to some reports. In many instances the more accurate description of the facts would be a failure-to-timely-diagnose. In either circumstance, the patient has suffered harm because a doctor has failed to take the proper steps to determine the nature of the medical problem. Obviously, without a diagnosis no treatment is possible.

    When confronted with new complaints or abnormal findings a doctor is required to use his or her best judgment to determine the cause. The patient is entitled to the full attention of an examining or treating doctor. This includes taking a complete history that is appropriate under the new circumstances. It also includes an expanded physical examination, if required. And, where necessary, laboratory testing or a referral to a specialist.

    Where a physician knew or should have known that the plaintiff had a life-threatening illness or disease, but did not diagnose this illness or disease because he breached the standard of good medical practice, there is a basis for a medical malpractice claim.

    Although there is, indeed, an art to medicine, there is also the science of observing, developing a theory, and then testing that theory. This means that a doctor must have the knowledge, intention and time to be sensitive to new findings, observations or complaints. In the face of new facts, he must develop a list of potential medical causes and a logical sequence of steps to work toward a final diagnosis.

    The conscientious doctor creates a list of potential causes, sometimes called a differential diagnosis, and methodically works though the list in the most prudent sequence. Sometimes certain potential causes are excluded rather easily, perhaps by a simple blood test. At other times, more time-consuming or expensive testing is needed, such as, a CT Scan. In each circumstance, however, the doctor must do what is required by the accepted standard of care in the community to arrive at a diagnosis.

    When a doctor fails to diagnose or timely-diagnose a medical condition the patient is deprived of the opportunity to receive early treatment that often would cure the disease. An undiagnosed patient frequently loses the opportunity for effective treatment. An unnecessary and premature death, or a serious, permanent impairment is the common consequence of a failure to diagnose.

    Cancer is, perhaps, the most common medical condition that goes undiagnosed despite signs and symptoms that should be a red flag to the examining doctor. Serious infections, such as those involving bone, are also delayed in diagnosis. Another common missed diagnosis is the continuation of bleeding after a cardiac catheterization procedure. There are many other instances of diseases or conditions that were not recognized until it was too late for effective treatment.

    The failure-to-diagnose malpractice claim brings its own unique problems to the experienced injury attorney. They are far from simple claims to develop and prosecute. First, it is obvious that the disease or condition was actually present and was going to cause some potential harm even if diagnosed and treated in a timely fashion. On behalf of the victim the attorney must show what specific harm was caused by the delay in the diagnosis. This is not always an easy task.

    A failure to diagnose cancer of the colon for six months after the first telltale signs and symptoms may mean that the cancer was allowed time to escape the colon and spread to distant parts of the body. On the other hand, if the spread had already occurred when the diagnosis should have been made in the exercise of good medical care the delay may not have directly caused any measurable harm to the patient.

    A second problem caused by the failure-to-diagnose situation is that the signs or symptoms may have been seen as the result of another medical condition that was being aggressively treated. A totally ignored complaint is a far more impressive basis for a failure-to-diagnose malpractice claim than a complaint that has been erroneously diagnosed and treated. That is not to say that the latter would be in keeping with the medical standard of care--but, it is an important fact that will have an impact upon the jury. A doctor who makes an honest mistake in judgment has not committed medical malpractice.

    An attorney experienced in medical malpractice knows the need to establish the required elements of a claim based on a failure-to-diagnose. At a very early point in the medical evaluation of the claim the attorney must answer the simple question: What difference did the failure-to-diagnose make to the patient? The answer must be that it made a very significant difference before the experienced attorney is willing to proceed. Only after this threshold question is addressed does the experienced attorney devote the resources to developing the breaches of the standard of care that caused the failure-to-diagnose.

    The patient is not well served by an inexperienced attorney who puts the cart before the horse and is blinded by an obvious failure to order necessary tests. The strength of the liability portion of the claim (where the misconduct of the doctor is proven) cannot overcome an inability to prove real harm caused by the delay in diagnosis. In the trial of such a case, the defense attorney basically argues "So what?" to the jury. He will simply say, "Even if a delay should not have occurred, the Plaintiff in this case has failed to show that the delay caused any injury."

    Not every failure-to-diagnose justifies a medical malpractice case. There are situations in which it is simply not possible to demonstrate clearly that the delay in recognizing the true nature of the medical problem caused significant harm to the patient. However, when the delay is clearly the result of a failure to act properly in making a diagnosis and the delay caused death or serious injury there is justification to proceed with a claim. A consultation with an experienced attorney is advisable to consider the specific circumstances surrounding any delayed or missed medical diagnosis.