Protect yourself from diagnosis-related lawsuits

April 23, 2010

In diagnosis cases, you don't have to be right, but you do have to be reasonable.

Key Points

Here is an actual malpractice case in which the claim was failure to diagnose: Mrs. A, an 82-year-old female, saw Dr. B, her primary care physician, on day 1 complaining of abdominal pain. The physical exam was unrevealing; vital signs were stable, and the complete blood count test results were normal. No definitive diagnosis was made. The patient was instructed to return if the pain got worse or if other symptoms developed.

On day 11, Mrs. A returned with more complaints of abdominal pain. An exam revealed the patient in no apparent distress. She had a soft abdomen, normal peristalsis, and no rebound. Her vital signs were normal, and a complete exam with a battery of tests was unremarkable.

the abdomen. She had a sudden, severe bout of abdominal pain and was taken to the operating room with a diagnosis of a leaking aortic aneurysm. Mrs. A died during surgery.

Mrs. A's daughter sued Dr. B, the surgeon, and the hospital for malpractice and wrongful death. The jury returned a defense verdict. (The cost of litigation was around $50,000.)

Why did the jury find for the defense? Mainly because the jury believed that Dr. B had been reasonable in his diagnosis. It also was helpful that damages were small because Mrs. A was 82 years old, not working, and living with her daughter. Also, proximate cause was weak because experts testified that the result probably would have been the same even if the aortic aneurysm had been diagnosed 11 days earlier.

Other important components of a malpractice decision:

The author is a health law attorney in Mt. Kisco, New York, and a Medical Economics consultant. She may be reached at lj@bestweb.net. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you would like to see covered here, please send it to medec@advanstar.com
.