DIAGNOSIS ERRORS – A Prescription for Medical Malpractice

If you pay attention to health care news like I do, you’ve probably noticed that most of the coverage lately has focused heavily –almost exclusively – on proposed changes to our current system and the costs associated with the various options.  As politicians in Washington argue about dollars and cents and about who is to blame for problems in our healthcare system, you hear very little about patient safety.  When is the last time read an article that said anything about protecting patients from unsafe medical practices?  When is the last time you heard a news anchor describe what is being done to protect folks who have been victimized by bad medical decisions?  The fact of the matter is, unless you personally have been through an ordeal involving a medical mistake, chances are patient safety issues are not foremost on your mind.

Right now, as you read this, there are members of Congress (including Virginia Congressman Bob Goodlatte) who are pushing legislation at the federal level to severely limit the legal rights of patients who are injured or killed in the medical system by substandard care.  Casually defending the bill with terminology intended to trigger anti-claimant sentiment like “frivolous lawsuits” and “defensive medicine”, proponents of the so-called Protecting Access to Care Act of 2017 trumpet the benefits cost savings and reduced litigation.  Make no mistake, this is mean-spirited legislation designed to effectively close the courthouse doors to the injured “little guy” while protecting the wallets of powerful insurance companies and billion dollar health care conglomerates.  But that rant is for a different blog on a different day.  My point right now is that these attempts to limit the liability of negligent health care providers are taking place at a time when it is becoming increasingly clear within the medical community that there is a crisis of diagnosis errors that cause preventable patient injuries at an alarming rate.

Injuries caused by diagnostic error are the most common source of medical malpractice cases seen in Virginia and nationwide.  These claims involve circumstances of:

  • Misdiagnosis – where the doctor (or doctors) identified and treated the wrong medical problem
  • Failure to Diagnose – where the doctor missed the medical problem altogether
  • Delayed Diagnosis – where the doctor eventually identified the correct problem, but not until after missing it for a period of time during which the patient’s condition worsened.

As many as 34% of malpractice claims are related to issues of errors in diagnosis. [doctors co] This figure only includes claims that are handled through litigation – clearly there are patients who are harmed by diagnosis errors who decide for some reason or another not to pursue a medical malpractice claim.  Errors in diagnosis have been found to result in disability or death nearly twice as often as other error categories, such as surgical blunders and medication mistakes. Researchers estimate that the number of patients suffering from diagnosis related, potentially preventable, significant injury or death annually in the U.S. ranges from 80,000 – 160,000 every year.  In 2015, the National Academy of Medicine released a report describing diagnostic error as a blind spot in the field of medical safety.

Errors in diagnosis happen in different settings and can involve a variety of different medical specialties.  The most common type of medical malpractice claim we investigate at our law firm is a failure to diagnose cancer case.  Within that category, we see numerous different types of fact patterns:

  • a radiologist has missed a visible spot on a patient’s lung when reading a chest x-ray, causing a failure to diagnose lung cancer;
  • a pathologist has mis-read a tissue sample and not recognized a melanoma;
  • a nurse has failed to deliver a test result to the attending doctor, leading to the patient being lost to follow-up.
  • an internist has misconstrued a set of symptoms and decided not to order a diagnostic study that would have revealed colon cancer in time to treat it.

Sometimes we look into these cases and conclude that the missed diagnosis is not the result of malpractice.  In other words, with the information available to the doctor at the time, it would not be reasonable to expect him or her to identify condition.  Sometimes the puzzle can only be put together in retrospect, when we know the end of the story.  But sometimes we see cases where the opportunity to make the right diagnosis is clear and available and for one reason or another, the treatment team misses it.

Just as there are plenty of different ways diagnosis errors can happen, there are also numerous explanations for why they happen.  Certainly inexplicable mistakes or mere lack of clinical skill and knowledge can account for some failures. Sometimes a doctor is tired or just not having his or her best day.  Lack of good communication within the health care system is also a major problem – whether that involves doctors not hearing what their patients are telling them, or specialists not sharing crucial information with primary care docs, or data simply “falling through the cracks” it is frightening how many preventable injuries happen in medicine because of poor communication.  Studies have shown that psychological biases can affect medical decision-making as well.  These biases range from “optimism bias” – the tendency to overestimate a pleasant outcome – to “overconfidence bias” – the tendency to think we know more than we do – to “anchoring bias” – when a doctor overly relies on a single piece of information to reach a premature conclusion.

Friends, family members and clients all ask what they can do to avoid being a victim of a diagnosis error.  Unfortunately, after 22 + years of handling malpractice cases I can’t identify a sure-fire way.  My best advice is to be an active participant in your own health care – ask questions, make sure you understand what tests are being run and why, do your own follow-up – just because you haven’t received a call telling you about your test results, don’t just assume that means they are ok.  They probably are, but why not be sure?

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