Medical malpractice can take many different forms. Cases involving diagnoses that are late, wrong, or missed completely represent some of the most prevalent instances of medical malpractice events. While mistakes in the vast and complex field of medicine are sometimes unavoidable, sadly, sometimes these errors result in significant harm and injury to a patient. In fact, often, the financial, physical, and emotional repercussions of medical errors can be devastating.
It is important to note that an adverse medical event does not always represent a valid medical malpractice claim. It is unreasonable to expect that physicians will always be able to deliver an accurate diagnosis in a timely manner. In order to establish a viable medical malpractice claim relating to missed, delayed, or wrong diagnosis, you must not only prove that the physician made a diagnostic error, but that they were negligent and failed to meet the established standard of care. That makes medical malpractice cases that involve a missed, delayed, or misdiagnosis incredibly complex and challenging. In this blog, we’ll discuss what constitutes a missed, delayed, or misdiagnosis and examine the elements of medical malpractice cases related to these adverse medical events.
The Doctor-Patient Relationship
When dealing with events that involve diagnostic errors, it is essential to take a closer look at the nature of the doctor-patient relationship. This relationship is fundamental to the foundation of medical malpractice claims. A high level of trust typically exists between patients and their treating physicians. That means that, as patients, we believe our doctors are providing us with proper medical care, accurate diagnoses of our ailments, and essential treatment so that we can get back on our feet quickly and feel as healthy as possible. Unfortunately, in cases where that trust was undermined by a doctor who provided medical care that fell below the standard, the patient can be left vulnerable to physical harm and serious injury. The erosion of trust that occurs in those instances can have far-reaching consequences.
Defining Misdiagnosis, Missed Diagnosis, and Delayed Diagnosis
In order to develop a diagnosis, a medical provider may run needed tests and lab work, perform an examination, review a patient’s medical history, and consult with another provider, if necessary. Developing a correct diagnosis is difficult because many medical conditions may present with similar symptoms. It is important for medical providers to conduct a thorough assessment in order to reach an accurate diagnosis. When mistakes happen, however, diagnostic errors can take many forms. Here are three general types of diagnostic errors that may be grounds for a medical malpractice claim:
- Misdiagnosis: An incorrect diagnosis of an illness or injury.
- Missed diagnosis: A diagnosis that was not given because the doctor failed to recognize the medical condition or injury with which the patient presented signs and symptoms. This can also be referred to as a failure to diagnose.
- Delayed diagnosis: A correct diagnosis that is not provided within a reasonable amount of time.
How Do Diagnostic Errors Happen?
Diagnostic errors are often the result of a physician’s failure to obtain all the critical information needed. In some instances, they also represent systemic issues within a hospital or medical facility that produce multiple issues, rather than isolated incidents. Diagnostic errors may be the result of a variety of failures to:
- Review the patient’s complete past medical, surgical, and family history
- Order the proper tests, like X-rays, MRI, CT scan, and other imaging, for screening or evaluation
- Detect or screen for cancer
- Conduct prenatal screening
- Properly interpret test results including blood work, imaging tests, cardiac testing, or pulmonary function testing
- Correctly report the results of testing and lab work
- Refer the patient to a specialist if necessary
- Conduct proper follow up care of a patient
- Provide medical support staff with proper training
- Have a full staff in place
- Properly and effectively communicate amongst physicians, technicians, and staff members
- Properly maintain, update, or repair medical and testing equipment so that it is in good working order
Who Is Responsible When Diagnostic Errors Occur?
While we often think of diagnostic errors as the result of a physician’s mistakes, in some instances of medical malpractice, other parties are also responsible. Medical malpractice lawsuits will name any and all parties that may hold some responsibility for the patient’s injury. A lawyer investigating a medical malpractice claim will conduct a thorough investigation of the incident in question in order to determine all parties who should be named in the lawsuit.
For example, if a diagnostic error occurred as a result of faulty equipment, the hospital or medical facility may be responsible as well. Also, in some cases, the doctor isn’t the only person responsible for improper medical treatment. Others involved in the care of a patient like a nurse, lab technician, physical therapist, pharmacist, or social worker may hold some responsibility for a patient’s injury that resulted after a medical malpractice incident. The hospital or medical facility may also be liable if their safety protocols and procedures were lacking. In determining whether or not to include a hospital or medical facility as a party in a medical malpractice lawsuit, your lawyer will determine which medical providers who may have been at fault were employed by the hospital or medical facility. If anyone involved in the medical malpractice incident was an employee, the hospital or medical facility will likely be named in the lawsuit.
Common Conditions in Missed or Delayed Diagnosis Cases
Physicians may have diagnostic errors related to a variety of both acute and chronic ailments, injuries, and illnesses. However, there are some conditions that tend to be missed or have their diagnosis delayed more often. Common conditions that are missed or failed to be diagnosed in a timely manner include:
- Pulmonary embolism
- Heart attack
- Appendicitis
- Stroke
- Bacterial infection
- Depression and anxiety
- Diabetes
- Spinal cord injury
- Various forms of cancer including breast cancer, lung cancer, pancreatic cancer, skin cancer, and lymphoma
In cases where these conditions are missed, incorrectly diagnosed, or not diagnosed within a reasonable time frame, patients may suffer catastrophic consequences. Take, for example, a patient who is having a heart attack but is diagnosed in the emergency room with a milder condition like indigestion. If they are sent home without receiving proper treatment, the results could be fatal. Patients who have cancer but are the victims of a diagnostic error and thus do not receive treatment as soon as possible are put at greater risk because of the nature of their progressive disease. The cancer may metastasize or advance to a point where the treatment required is much more invasive and extensive. Survival rates for patients with cancer are impacted significantly by how soon they receive an accurate diagnosis. In these cases, patients and their families must face the difficult consequences of a medical provider’s negligence.
Proving the Case
For patients and the lawyers representing them, there is an incredibly high bar set for what is required to prove an injury was the result of a diagnostic error and that the error represented negligence. Many cases are dismissed or fail to recover compensation for the plaintiffs on the grounds that even if the patient had received an accurate diagnosis, their condition still would have worsened and resulted in a similar outcome. Essentially, the injury was caused by the condition itself, not by the doctor’s negligence. This creates an uphill battle in proving the case for the plaintiffs. Experts and the opinions they provide in court are vital in every medical malpractice case but especially vital in diagnostic error cases. In these types of cases, experts will closely examine how the physician reached their conclusions and provided, or failed to provide, their diagnosis.
In the case of a patient who has cancer and received an incorrect diagnosis, thus delaying their treatment and potentially resulting in injury that would not have occurred if they had received an accurate diagnosis and timely treatment, establishing causation is incredibly difficult and complex. They first have to prove that the cancer was present at the time of the diagnostic error. Unfortunately, and likely because of the diagnostic error, there may be no objective evidence that can demonstrate when the cancer first appeared. Next, they must also establish that they would have received an accurate diagnosis if not for the physician’s or hospital’s negligence. After they have established that, they must go on to demonstrate that with an accurate diagnosis, they would have received timely treatment and that treatment would have resulted in a better prognosis for them. This is very difficult, and the court and experts will examine the type of cancer, stage of its progression, and the kinds of treatments that would have been available had the diagnostic error not been made.
In the United States, victims of diagnostic errors who sustained an injury can, in their lawsuit, attempt to prove they lost the chance to receive potentially successful treatment at an earlier time. In these cases, they will attempt to establish a percentage of fault that can be placed on the defendant. For example, they may argue that the diagnostic error and resulting delay reduced their chances of receiving a successful treatment by 20%. If the court accepts this argument, the plaintiff may be awarded 20% of their potential future losses.
Unfortunately, Canadian courts have not allowed plaintiffs to claim “loss of chance” in their cases. In Canada, proving that earlier treatment may have resulted in a better outcome isn’t enough. The plaintiff must be able to demonstrate that more than likely they would not have sustained the injury or harm if they had been accurately diagnosed at an earlier time. In other words, they must establish that an earlier diagnosis probably would have resulted in a different outcome. This is often referred to as the “but for” test in Canadian tort law. Essentially, the plaintiff must establish that more than likely but for the defendant’s negligence, they would have not sustained an injury.
Common Defences to Medical Malpractice Claims Involving Diagnostic Errors
In medical malpractice cases involving diagnostic errors, the defence will attempt to dispute the plaintiff’s claims that the named defendants (the medical providers and facilities responsible) were negligent. The basis of their argument will typically be that if a correct or earlier diagnosis had been made, the results for the patient would have been no different. They may also argue that there was no diagnostic error.
In claims involving chronic, progressive diseases like cancer, the defence may simply argue that because the cancer was already present, an earlier diagnosis would not have positively affected the patient’s overall prognosis. While utilizing this defence, lawyers representing the medical providers and facilities named in the lawsuit will rely heavily on expert testimony explaining growth models and estimated inception dates. The goal will be to establish that the cancer was likely already advanced before the defendant’s error and negligence occurred.
Another common defence to diagnostic errors cases is simply to try and prove that the patient was going to die anyway, regardless of any error made by their medical provider. This is common again in cases where the patient had a disease like cancer. The goal of this defence is to establish the inevitability of the ultimate negative outcome to the patient by citing the nature of the disease or illness from which they suffered. Take, for example, a patient who had advanced pancreatic cancer and died before learning about treatment options due to a delayed diagnosis. The defence will claim that even if a timely diagnosis had been given, the patient would have died anyway as a result of their advanced disease.
Have You or a Loved One Been Harmed by Medical Malpractice?
Klein Lawyers handles medical malpractice cases, has a stellar reputation, and has an outstanding track record. We understand how to identify instances of malpractice where diagnostic errors and negligence harmed innocent victims. We have the resources, knowledge, and experience Canadians need to get the justice and compensation they deserve.
We will start by conducting an in-depth investigation of the evidence in your case. We will take the time to really listen to your story, obtain and review any needed records, and thoroughly evaluate your potential claim. During the case, we will retain key medical experts to establish the critical details of the injury that occurred. We strive to make this process as easy for you as possible, shouldering as much weight as we can. Our aim is that you focus on your life, while we focus on your case.
We keep you informed throughout the entire case so you never feel like you are in the dark. We want you to understand what’s going on and feel comfortable asking any questions along the way. Too often, we hear concerns expressed from potential clients about what the process will be like, what they will need to do, how often they will hear from their lawyers, and what will be expected of them. We will make it clear right from the start. You will know what to expect, and we will stay true to our commitment to you. Communication and transparency are important to our team, and you will recognize that as our client.
Klein Lawyers Can Help
Klein Lawyers has over 20 years of success and experience in the legal field. During that time, we’ve worked hard to earn the trust and respect of Canadians who need legal representation. Working with an experienced lawyer is critical, and our team understands the trust clients place in us when representing them. We value that trust and feel honoured that so many clients choose our law firm to fight for them. We are passionate about obtaining the best possible outcome for our clients. While we know it is never easy, we will not stop standing up to medical professionals who harm individuals through their negligence.
Contact Us Today
Contact the Klein Lawyers team today at (604) 874-7171 for a free consultation of your claim with a Vancouver medical malpractice lawyer. We serve clients throughout British Columbia and Canada. There’s no obligation, and your consultation is completely confidential. We’re here to help victims of medical malpractice receive the justice they deserve.
