When Is Failure To Diagnose/Misdiagnosis Considered Malpractice?
It should come as no surprise that failure to diagnose/misdiagnosis by doctors is by far the most common type of medical malpractice reported, comprising over 40% of all medical malpractice claims filed in the United States.
Obviously, instances exist where doctors failed to diagnose or misdiagnosed a patient even after exercising his or her best medical judgment and performed all of the correct tests and evaluations, and in these instances, medical malpractice has not been committed. The crucial question one must ask in proving medical malpractice due to a failure to diagnose or misdiagnosis is whether the doctor deviated in any way from the accepted standard of care in forming a diagnosis and if that deviation resulted in injuries or other damages.
If you or a loved one has had an existing medical condition worsen, a new medical condition arise, has sustained other injuries or has died due to a medical provider’s failure to diagnose or misdiagnosis, reach out to the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., for a free initial consultation. Call 212-689-5000 today.
In evaluating whether a physician complied with the accepted standard of care in diagnosing a patient, the Courts will often examine that physician’s “differential diagnosis.” A differential diagnosis is a systematic approach used by all doctors to rule out diseases or conditions from a list of possible diagnoses based on probability through compiling medical histories, ordering certain tests and utilizing his or her training and experience.
Some common causes of medical malpractice via failure to diagnose and misdiagnosis include:
- An incorrect assumption made by a doctor coupled with a failure to test that incorrect assumption. This often happens when a patient’s symptoms closely match a common condition that the doctor accepts without further testing and/or inquiry.
- A doctor’s failure to order proper tests and/or failure to properly interpret tests
- A doctor’s failure to refer the patient to an appropriate specialist in situations that require it
- A doctor’s failure to compile a proper history from the patient which is often due to the doctor’s failure to both ask the right questions and listen to the patient’s responses and other statements
Failure To Diagnose Cancer
Early detection of cancer is crucial to a patient’s probability of survival. When a physician fails to correctly diagnose cancer or fails to diagnose it in a timely matter, the patient will usually have to undergo aggressive and physically painful treatments that are emotionally and financially taxing as well. This is because any delay in cancer treatment will allow it to metastasize (spread) to other areas of the body. Cancers of the breast, colon, prostate, lung, ovaries, cervix, testicles, kidneys, esophagus and skin are among the most commonly misdiagnosed forms of cancer. Failure to diagnose cancer is usually due to the doctor’s failure to:
- Properly question and listen to the complaints of the patient about pain and bleeding, inexplicable weight loss, the discovery of lumps and other cancer symptoms
- Properly communicate information and risk
- Complete a full history and physical examination of the patient
- Perform all necessary tests including blood and urine tests, radiological scans and biopsy of a tumor
- Detect tumors and lesions following CAT scans, MRI and other tests conducted during the treatment and analysis for other conditions
- Provide or recommend proper follow-up, often involving a failure to refer patients to specialists
- Insist on diagnostic tests when insurance companies refuse to preapprove and pay for care
- Failure to consider different and/or alternative possible diagnoses
In attempting to prove that a failure to diagnose cancer is medical malpractice, the most important factor that the courts consider is whether the failure to diagnose was the proximate cause of harm brought upon the patient. The elements involved in proving that the patient had been harmed as a result of the doctor’s failure to diagnose cancer include:
- The time elapsed due to the delay in diagnosis
- Whether or not cancer had metastasized
- The prognosis associated with the specific type of cancer when detected early
If you or a loved one has had a radical and life-altering medical intervention or died due to a medical provider’s failure to diagnose cancer correctly and/or in a timely fashion, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., for a free initial consultation regarding your legal rights in order to obtain full compensation and damages due to your harms and losses.
Failure To Diagnose Heart Attacks And Strokes
It is a well-known fact that heart disease is the leading cause of death in the United States today. According to the Centers for Disease Control and Prevention, coronary heart disease, which is the most common type of heart disease and is what causes heart attacks, was the cause of death for 405,309 Americans in 2008 alone. Strokes are the third leading cause of death in the United States, accounting for over 160,000 deaths per year. Unfortunately, although both heart attacks and strokes have classic signs and symptoms and can be readily prevented or treated given the proper testing and evaluations, there are many careless doctors and nurses who contribute to an increase in the statistics cited above rather than to a mitigation of the death toll, due to their exercise of an insufficient standard of care and deviations from good and accepted medical practices. All medical providers, including cardiologists, emergency room physicians, internists and nurses must know the classic warning signs of these common causes of death.
Warning signs of heart attacks (American Heart Association):
- Discomfort of the chest (pressure, fullness, constriction or pain)
- Discomfort of other areas of the body (pain in both arms, the neck, jaw or stomach)
- Shortness of breath
- Cold sweat
Warning signs of strokes (American Heart Association):
- Sudden numbness/weakness of the face, arm or leg (especially on only one side of the body)
- Sudden confusion (trouble in speaking/understanding)
- Sudden difficulty with walking and dizziness and loss of balance/coordination
- Sudden difficulty seeing in one or both eyes
- Sudden severe headache (without a known cause)
A patient’s primary physician must be able to identify and address these risk factors in order to prevent heart attacks and strokes from occurring. Only through a proper differential diagnosis can a physician effectively treat a patient who is at risk for either of these common killers. For example, a competent doctor would identify abnormalities in an EKG or ECG (electrocardiogram) test and then proceed to perform further testing, including stress tests, echocardiograms, blood tests and other tests of the heart’s health. After performing the proper tests, a doctor can then make an informed decision as to whether a patient will need surgery, such as bypass surgery or angioplasty or simply medication in order to reduce the risk of complications and improve the quality and longevity of the patient’s life.
A stroke can also be prevented through addressing cardiovascular disease. The two major types of strokes are:
- Ischemic strokes (“dry strokes”), caused by blockage of oxygen to the brain which restricts blood flow
- Hemorrhagic strokes (“wet strokes”), caused by bleeding of the brain
Transient ischemic attacks, or “mini-strokes,” must be detected by physicians in a timely manner because these attacks significantly increase the risk of a more serious stroke.
If you or a loved one has sustained injuries or died due to a medical provider’s failure to diagnose the risk of a heart attack or stroke correctly and/or in a timely fashion, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., for a free initial consultation regarding your legal rights in order to obtain full and fair compensation and damages due to your harms and losses.
Failure To Diagnose Aneurysms
The timely diagnosis of an aneurysm is crucial for the survival of a patient. An aneurysm is a weak spot on a blood vessel that, like an over-inflated balloon, is at constant risk of bursting and causing irreparable damage and in many cases death.
A brain aneurysm is a weak bulging spot on the wall of a brain artery. The Brain Aneurysm Foundation lists symptoms of an unruptured brain aneurysm that includes:
- Localized headache
- Cranial nerve palsy
- Pain above and behind the eyes
- Double vision
- Dilated pupils
Preceding a ruptured brain aneurysm (subarachnoid hemorrhage), about 40% of people who experienced it had shown warning signs which include:
- Localized headache
- Blurred vision
- Stiff neck
- Loss of sensation
- Sensitivity to light (photophobia)
If a physician has any suspicion that a patient’s symptoms indicate the existence of an aneurysm, many effective tests can be performed, including:
- MRI (magnetic resonance imaging)
- MRA (magnetic resonance angiography)
- Angiograms (arteriogram)
- CT scans (computed tomography scan)
- CTA (computed tomographic angiography)
If a physician fails to accurately and timely diagnose a patient with an aneurysm in accordance with good and accepted medical practices, the patient may sustain brain damage, coma, paralysis or death.
The aorta is the human body’s largest and most important artery, carrying oxygen-rich blood away from the heart to all of the other arteries. An aortic dissection, also known as a dissecting aneurysm, is a condition where a tear of the aorta’s inner layer develops and blood enters the middle layer of the aorta. This forces the inner and middle layers of the aorta to separate or dissect. Symptoms of an aortic dissection include:
- Sudden and severe chest/back pain
- Shortness of breath
- Loss of consciousness
If this condition is not detected early on by a physician, the aortic rupturing may break through to the outside layer of the aortic wall and the result will usually be fatal for the victim.
If you or a loved one has sustained injuries or died due to a medical provider’s failure to diagnose the risk of an aneurysm correctly and/or in a timely fashion, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., for a free initial consultation regarding your legal rights in order to obtain full compensation and damages due to your harms and losses which you and your family deserve.
Failure To Diagnose Meningitis
Meningitis is an inflammation of the meninges, or lining, of the brain and spinal cord and is normally caused by a bacterial/viral infection that begins elsewhere in the body such as in the ears, sinuses or throat and eventually spreads through the bloodstream to the spinal fluid. Bacterial meningitis can be caused by any of several kinds of bacteria, but there are four types of bacteria that comprise over 80% of all cases:
- Group B streptococcus (in newborns)
- Haemophilus Influenzae Type B (in babies)
- Meningococcus (normally in young adults)
- Pneumococcus (normally in adults)
Statistically speaking, about 10,000 meningitis cases are reported per year, and approximately two-thirds of those cases concern children (especially infants aged 0-2 years). The incident rate for meningitis increases and becomes more deadly as age decreases because younger children do not have immune systems as strong and developed as the immune systems of adults.
The most common symptoms of meningitis for teenagers, college students and adults are:
- Stiff neck
- Inability to tolerate bright lights (photophobia) or loud noises (phonophobia)
The most common symptoms of meningitis for newborns, infants and small children are:
- Poor feeding
- Arching of the back
- High-pitched cry
- Leg pain
- Cold extremities
- Abnormal purplish skin coloring
Upon suspicion that a patient has developed meningitis, a physician should order a spinal tap or lumbar puncture in order to obtain a sample of the spinal fluid for laboratory testing, unless the patient has a brain mass or increased intracranial pressure because that might lead to brain herniation. A physician must not delay in treating meningitis until the final culture report is completed, therefore empiric antibiotics that a reasonably prudent doctor with training and experience would prescribe for an individual in whatever age group is receiving treatment should be prescribed immediately. After the final culture report returns to the physician, a more accurate decision about treatment can be made. If an early and accurate diagnosis is not provided in cases of meningitis, the catastrophic results may include:
- Permanent brain damage and neurological deficits
- Mental retardation
- Cerebral palsy
- Loss of digits/limbs
- Developmental delays
If you or a loved one has sustained injuries or died due to a medical provider’s failure to diagnose meningitis correctly and/or in a timely fashion, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., for a free initial consultation regarding your legal rights in order to obtain full and fair compensation and damages due to your harms and losses.
Failure To Diagnose Lyme Disease
Lyme disease is a bacterial illness caused by Borrelia burgdorferi, and it is the most commonly reported vector-borne illness with 22,572 confirmed cases reported in 2010 alone. It can be found virtually anywhere in the United States, and it is usually passed into human beings by ticks that inject an anesthetizing substance for lack of detection. Lyme disease’s very nature is one of danger and mystery. As a result of Lyme disease’s stealth, any carelessness on the part of a physician in performing a differential diagnosis may divert the doctor and the patient from the true culprit of his or her symptoms. Unfortunately, there are many instances of this sort of physician negligence and the results can be catastrophic for someone whose Lyme disease goes undiagnosed or misdiagnosed.
For more fortunate victims of Lyme disease (about 50% of Lyme disease victims), what is called a “bull’s eye rash” will surface near the bite location, and the prognosis becomes more obvious for a doctor and further testing is usually not necessary. However, due to variations in the rash’s formation, a careless doctor may still misdiagnose a Lyme disease victim with:
- Spider bite
- Tinea corporis
Symptoms for Lyme disease that a doctor must consider include:
- Loss of coordination
- Double/blurred vision
- Chest pain
- Painful joints
- Memory loss
Laboratory testing for Lyme disease only further complicates matters, as tests such as the western blot and ELISA (enzyme-linked immunosorbent assay) tend to be unreliable and sometimes yield false-negative results, so it is critical that a physician is competent at addressing the patient’s symptoms and has an adequate understanding of Lyme disease. Left undiagnosed and therefore untreated, the infection may spread to the joints, brain and other tissues, and symptoms may take years to develop due to Lyme disease’s tendency to lay dormant in the host until the immune system is sufficiently weak for the attack. The consequences of a Lyme disease misdiagnosis include:
- Nerve damage
- Heart damage
Obviously, there are many other illnesses and/or conditions that have not been mentioned which are misdiagnosed or not diagnosed at all.
Schedule A Free Consultation To Discuss Your Options
If you or a loved one has sustained injuries or died due to a medical provider’s failure to diagnose Lyme disease correctly and/or in a timely fashion, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., for a free initial consultation regarding your legal rights in order to obtain full compensation and damages due to your harms and losses.