The Wrong Diagnosis – Considerations For The Malpractice Attorney - Joseph Grillo, M.D. Medical Legal Consulting

Joseph Grillo, M.D.

jgrillo1@umassd.edu

Medical malpractice attorneys know too well that the vast majority of malpractice claims are dropped, dismissed or withdrawn after which there remains a heavy financial burden. In 2015, the average expense incurred on medical liability claims was $54,165 – a substantial increase of 64.5 percent since 2006. If your case gets to trial, about 90% of medical malpractice cases tried in Massachusetts result in a jury verdict for the defense. Of all cases, approximately 40% of all malpractice are for “failure to diagnose” which is subsidiary to “wrong diagnosis.”1

Actionable injury arises when the physician’s misdiagnosis causes a greater harm than existed at the time of the misdiagnosis, but a mere mistake in diagnosis is not actionable where the physician uses the proper degree of care and skill, so that liability is not imposed on a physician for a mistake in diagnosis or an error in judgment except where that mistake results from a failure to comply with the recognized standard of medical care exercised by physicians in the same specialty, under similar circumstances, in the general area in which the physician practices

Even where there is evidence of a physician’s negligence in the diagnosis or treatment of a patient, a plaintiff cannot recover for medical malpractice unless the plaintiff establishes by a preponderance of the evidence that the negligence proximately caused the plaintiff harm.

This suggests that the malpractice attorney must hold up a potential case to a rigorous evaluation process,, typically in consultation with medical professionals. Here we consider missed, failed, or wrong medical diagnoses and will leave surgical and interventional diagnoses for another discussion.

In Massachusetts the most common missed diagnosis claims involve malignancies. From these, the cases most litigated have involved cancers of breast, lung, colorectal system, and reproductive systems. Focusing on these, once the attorney has gone through the painstaking efforts of the initial interview(s) and making the necessary referrals, the work begins. All information has to be assimilated; the attorney must identify with specificity all the place(s) where a breach occurred. Some of the variables that will need to be scrutinized include identification of:

Failure to perform cystoscopy (bladder ca), bronchoscopy (lung ca), ultrasound (breast & ovarian cancers)
Failure to perform/analyze/provide x-ray, cat scan, PET and SPEC scan, and MRI
Failure to properly collect, preserve and perform histological evaluation of tissue samples
Failure to perform/analyze/proved for the proper blood tests
Failure to perform/analyze/inform biopsy correctly
Failure to perform/analyze/report timely colonoscopy or upper endoscopy
Failure to refer to appropriate specialists in a timely fashion
Failure to seek second opinion(s) when indicated.

This list is far from exhaustive and only encompasses the clinician. Of course, health care facilities, corporations, or persons other than physicians who treat patients for hire with the expectation of profit may be held vicariously liable for negligence or malpractice on the part of the physicians employed by them, and the fact that physicians may be affiliated in a professional service corporation does not protect them from personal responsibility for the negligence of their corporate employees (discussed elsewhere).

Wrongful Diagnoses Based on Diagnostic Errors

Diagnostic error is defined as “the failure to (a) establish an accurate and timely explanation of the patient’s health problem(s) or (b) communicate that explanation to the patient.” The key variables in this definition are accuracy, timeliness, and communication. 2

Diagnostic error encompasses

The failure to establish an accurate and timely explanation of a patient’s health problem(s) or communicate that to the patient.
A diagnosis that is: – Wrong – Missed – Delayed
A missed opportunity to make a diagnosis
Overdiagnosis – when a diagnosis is made that is unlikely to ever have the potential to influence a patient’s health

Diagnostic errors are the leading cause of medical malpractice claims as well as preventable adverse events among healthcare providers. Delivery of health care has proceeded for decades with a blind spot – the diagnostic error – inaccurate or delayed diagnoses. These errors persist throughout all settings of care. There is an incredible amount of information and data available, but from all this, we don’t have clean numbers on missed diagnosis.

About 33% of diagnosis-related suits occurred because the doctors failed to appropriately evaluate the patient, including getting an appropriate family history. Roughly 52% of claims involved errors related to lab testing. Doctors either chose the wrong test, improperly performed the test or misinterpreted the results.

The Best Data Available

According to a study from the Institute of Medicine published in 2016, most Americans who go to the doctor regularly will get a diagnosis that is wrong at least once in their lives, sometimes with dire consequences. This type of health-care error is far more common than medication or surgical mistakes. It is estimated that between 40,000 to 80,000 deaths occur in the U.S. from diagnostic error and that as many as 17 percent of diagnoses are inaccurate. 3

The Mechanism of Missed Diagnoses

The mechanics are rather complicated but worth discussion. Diagnosis is a process, and like any process, it is susceptible to error. The process is particularly complex because it typically includes many handoffs of information or materials, involves uncertainty, and the underlying diagnosis may evolve over time or present in many different ways. The process also involves large numbers of participants, including health care providers, patients, and family members.

The IOM talks about cognitive biases as being at the root of many diagnostic errors. An extensive body of research has examined the causes of diagnostic error at the individual clinician level. This work has been informed by the field of cognitive psychology, which studies how individuals process information and subsequently develop plans. As applied to health care, we have learned that clinicians frequently use heuristics (shortcuts or “rules of thumb”) to come up with a provisional diagnosis, especially when faced with a patient with common symptoms. While heuristics are ubiquitous and useful, researchers have used categories developed in cognitive psychology to classify several types of errors that clinicians commonly make due to incorrect applications of heuristics. To illustrate, some of these include (with actual examples):

Diagnosis of current patient biased by experience with past cases.
Example: A patient with crushing substernal chest pain was incorrectly treated for a myocardial infarction, despite indications that an aortic dissection was present.

Relying on initial diagnostic impression, despite subsequent information to the contrary. Example: Repeated positive blood cultures with Corynebacterium were dismissed as contaminants; the patient was eventually diagnosed with Corynebacterium endocarditis.

Diagnostic decision-making unduly biased by subtle cues and collateral information.
Example: A heroin-addicted patient with abdominal pain was treated for opiate withdrawal, but proved to have a bowel perforation

Placing undue reliance on test results or “expert” opinion.
Example: A false-negative rapid test for Streptococcus pharyngitis resulted in a delay in diagnosis.

A few common themes that I came across, at which I agree:

Over 100 years ago the esteemed physician, William Ostler, advised medical students to listen to the patient and the patient would give them the diagnosis. A recent study has confirmed the enduring nature of this advice. Almost invariably, I found this to be the case in my clinical experience.

“The overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all. Patients don’t file lawsuits because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care – and something else happens to them.”

“What comes up again and again in malpractice cases is that patients say they were rushed or ignored or treated poorly.”

No doubt, Diagnostic errors is a multifactorial and complex problem. As important as it is we often make a diagnosis by relying solely on our intuition. In the ER or urgent care setting, we can easily be lulled into thinking that we don’t make errors in diagnosis because we often never see the patient again. In fact, most of the outcomes remain unknown to us. Not knowing whether we got the diagnosis correct is an important variable. But is no news good new? Probably not. No news is No news.

I recall Donald Rumsfeld saying – we know what we know, we know there are things we do not know, and we know there are things we don’t know we don’t know. In the absence of clear feedback, physicians feel little need to update their current diagnostic schema.

Physicians are also under the burden of contemporary practice, where insurance companies play a large role, and physicians are driven to see a greater number of patients for less reimbursement. Hence, misdiagnoses often occur when physicians are bogged down by heavy workloads and siloed work environments that make a thorough diagnosis difficult. In an ongoing study, data was recorded on how time pressures make it hard for doctors to stop and think. In addition to the incessant pace of work and physical distractions, there is substantial variation in how information is collected, presented and synthesized to inform diagnosis.

Finally, doctors are of a culture to wear an impenetrable mask of supreme confidence and of always being right. Admitting a mistake is an admission of failure. Discussing one is worse still. Everyone would know that I had made a mistake. I might get sued, causing me both potential financial and professional harm. And so, I kept quiet. In so doing, I may have even caused more harm.

As I waded through all of the data, I thought of my way of doing things and whether not having been sued was just dumb luck. First, as smart as I thought I was, I knew there were chinks in the armor. I knew that I didn’t know a lot, and I often didn’t know what I didn’t know. Next, I always included the patient as a participant in his own care. “I think you have gastroenteritis – but I’m not sure. If you are not better in two days, you have to let me know.” If I made an error, I was advanced enough in years and was comfortable with the direct, truthful approach. I could never have done this in my earlier career. I tended to many not-so-serious ailments. I knew that virtually all of these would get well on their own – whether I intervened or not. I also knew that every drug on earth has side effects, so the rule of thumb was to not prescribe whenever possible. This avoided the potential for adverse effects. Even amongst the least serious cases, I always had in mind a differential diagnosis – among these I was aware of the worst scenario – say a bronchitis that was harboring a lung mass, or a swollen leg that might evolve into a pulmonary embolism. Hence, I always included in my plan a contingency. I tried to make it a habit to communicate this to the patient without being an alarmist. When I did encounter a case where I didn’t know what was going on, I got help. There’s little to no excuse for a physician to miss a diagnosis in a world full of consultants and specialists. If you are diligent but don’t have the answer – punt! Get others involved. Come to a consensus and then formulate a plan. All of this was more common sense than medical training. And along the way, I assumed that if you angered a patient – you were more likely to be sued. On the other hand, if patients were treated right, they proved to be forgiving. There’s a lot to be said for kindness. I know of no statistic to validate this, but I would bet that most malpractice cases have as an element an angered patient.

Unfortunately, general medicine practitioners like myself are the most likely to make diagnostic errors because we are usually the first step in providing care for patients and it is impossible to be an expert across all of medicine. For instance, generalists receive an average of 21 hours of training in dermatology, but they see more than 65% of skin conditions. The inevitable consequence is that an astonishing 48% of skin presenting diagnoses made by non-dermatologists are incorrect.

The literature has a large amount information available on misdiagnoses, autopsy data, and specific findings. The following is a synopsis.

STUDY NAME: Shojania et al (2002)
ASSESSED CONDITION: Tuberculosis of the lungs (bacterial infection)
FINDINGS: Reviewing autopsy studies specifically focused on the diagnosis of lung TB, researchers found that 50 percent of these diagnoses were not suspected by physicians before the patient died.

STUDY: Pidenda et al (2001)
CONDITION: Pulmonary embolism ( a blood clot blocks arteries in the lungs)
FINDINGS: This study reviewed diagnosis of fatal dislodged blood clots over a five-year period at a single institution. Of 67 patients who died of pulmonary embolism, clinicians didn’t suspect the diagnosis in 37 (55 percent) of them.

STUDY: Lederle et al (1994), von Kodolitsch et al (2000)
CONDITION: Ruptured aortic aneurysm (when a weakened, bulging area in the aorta ruptures)
FINDINGS: These two studies reviewed cases at a single medical center over a seven-year period. Of 23 cases involving these aneurysms in the abdomen, diagnosis of rupture was initially missed in 14 (61 percent); in patients presenting with chest pain, doctors missed the need to dissect the bulging part of the aorta in 35 percent of cases.

STUDY: Edlow (2005)
CONDITION: Subarachnoid hemorrhage (bleeding in a particular region of the brain)
FINDINGS: This study, an updated review of published studies on this particular type of brain bleeding, shows about 30 percent are misdiagnosed on initial evaluation.

STUDY: Burton et al (1998)
CONDITION: Cancer detection
FINDINGS: Autopsy study at a single hospital: of the 250 malignant tumors found at autopsy, 111 were either misdiagnosed or undiagnosed, and in just 57 of the cases, the cause of death was judged to be related to the cancer.

STUDY: Beam et al (1996)
CONDITION: Breast cancer
FINDINGS: Looked at 50 accredited centers agreed to review mammograms of 79 women, 45 of whom had breast cancer. The centers missed cancer in 21 percent of the patients.

STUDY: McGinnis et al (2002)
CONDITION: Melanoma (skin cancer)
FINDINGS: This study, the second review of 5,136 biopsy samples found that diagnosis changed in 11 percent (1.1 percent from benign to malignant, 1.2 percent from malignant to benign, and 8 percent had a change in doctors’ ranking of how abnormal the cells were) of the samples over time, suggesting a not insignificant initial error rate.

STUDY: Perlis (2005)
CONDITION: Bipolar disorder
FINDINGS: The initial diagnosis was wrong in 69 percent of patients with bipolar disorder and delays in establishing the correct diagnosis were common.

STUDY: Graff et al (2000)
CONDITION: Appendicitis (inflamed appendix)
FINDINGS: Retrospective study at 12 hospitals of patients with abdominal pain and operations for appendicitis. Of 1,026 patients who had surgery, there was no appendicitis in 110 (10.5 percent); of 916 patients with a final diagnosis of appendicitis, the diagnosis was missed or wrong in 170 (18.6 percent).

STUDY: Raab et al (2005)
CONDITION: Cancer pathology (microscopic examination of tissues and cells to detect cancer)
FINDINGS: The frequency of errors in diagnosing cancer was measured at four hospitals over a one-year period. The error rate of pathologic diagnosis was 2 percent to 9 percent for gynecology cases and 5 percent to 12 percent for nongynecology cases; errors ran from what tissues the doctors used, to preparation problems, to misinterpretations of tissue anatomy when viewed under microscope.

STUDY: Buchweitz et al (2005)
CONDITION: Endometriosis (tissue similar to the lining of the uterus is found elsewhere in the body)
FINDINGS: Digital videotapes of the inside of patients’ bodies were shown to 108 gynecologic surgeons. Surgeons agreed only 18 percent of the time as to how many tissue areas were actually affected by this condition.

STUDY: Gorter et al (2002)
CONDITION: Psoriatic arthritis (red, scaly skin coupled with join inflammation)
FINDINGS: One of two patients with psoriatic arthritis visited 23 joint and motor specialists; the diagnosis was missed or wrong in nine visits (39 percent).

STUDY: Bogun et al (2004)
CONDITION: Atrial fibrillation (abnormal heart beat in the upper chambers of the heart)
FINDINGS: Review of doctor readings of electro-cardiograms [a graphical recording of the change in body electricity due to cardiac activity] that concluded a patient suffered from this abnormal heart beat found that: 35 percent of the patients were misdiagnosed by the machine, and the error was detected by the reviewing clinician only 76 percent of the time.

STUDY: Arnon et al (2006)
CONDITION: Infant botulism (toxic bacterial infection in newborns’ intestines)
FINDINGS: Study of 129 infants in California suspected of having botulism during a five-year period; only 50 percent of the cases were suspected at the time of admission.

STUDY: Edelman (2002)
CONDITION: Diabetes (high blood sugar due to insufficient insulin)
FINDINGS: Retrospective review of 1,426 patients with laboratory evidence of diabetes showed that there was no mention of diabetes in the medical record of 18 percent of patients.

STUDY: Russell et al (1988)
CONDITION: Chest x-rays in the emergency department
FINDINGS: One third of x-rays were incorrectly interpreted by the emergency department staff compared with the final readings by radiologists.

Errors notwithstanding, one study revealed that one percent of all doctors account for 32 percent of all paid malpractice claims, and the more often a doctor is sued, the more likely he or she will be sued again. Researchers analyzed 10 years of paid malpractice claims using the National Practitioner Data Bank, a federal government database that includes 66,426 claims against 54,099 doctors. The study is in the New England Journal of Medicine. A doctor who had two paid claims was twice as likely to have another as a doctor who had one, and a doctor who had six or more paid claims was 12 times as likely to have another.

Practical Aspects For the Malpractice Attorney

Hopefully this section will be useful in avoiding some pitfalls. These are based on clinical experience and my legal readings.

Some Cases You May Consider Refusing:

In general terms, these types of cases pose great difficulty of success for the lawyer. Although there are certainly many cases of true medical malpractice, before the lawyer devotes his or her own blood, sweat, tears, and resources … it should be pondered whether the exercise of a suit will bring nothing but more frustration and lost earnings.

10: NON-SPECIFIC FATIGUE

A patient complaining of fatigue needs a thorough medical examination. If this reveals nothing, the patient should be monitored. If later, a serious problem results; the patient may seek to sue the doctor. If the doctor followed routine standards of care, there is likely no actionable malpractice. The situation is sad, but there is likely no legal remedy.

9: HEADACHE

Head discomfort can be caused by many factors: some serious and physical; some serious and psychological; some not serious. A competent doctor should thoroughly examine the patient, including blood work, physiological monitoring and lifestyle examination.

If these show no abnormality, yet a grievous problem later manifests, the proof of medical malpractice is difficult, at best. The reasonable medicalstandard of care likely was met.

8: INJURY DURING SURGERY

Approach with caution. Difficult surgery, such as neurological surgery, poses not only the problem of rectifying the problem necessitating the surgery, but also that in performing the surgery, related trauma to surrounding tissue and the stress to the body is common if not likely. Of course this is unfortunate. But proving malpractice here is difficult.

7: DIZZINESS

Non-specific dizziness can be caused by a host of imbalances: blood abnormalities, brain abnormalities, heart abnormalities, etc. If examination reveals nothing extraordinary–but a problem later develops; the initial examining physician may be at fault–but proving malpractice may be next to impossible.

6: BRAIN TUMORS

The human brain is such a complex organism that fully remedying an abnormality is often impossible. If the surgeon has explained the dangers, that one occurs, is typically not malpractice.

5: DENTAL DISCOMFORT

Because of the difficulty in finding the source of many dental pain, a surgery that fails to relieve the pain may indicate neither more nor less than bad luck.

4: GENERAL MALAISE

Many a patient will simply “feel bad.” After examination, nothing may be indicated. Some time later, a serious problem may manifest. Proving causation of that initial malaise to the later problem is tenuous.

3: TRANSVERSE TIBIAL FRACTURE AND HIP FRACTURE

Tibial fractures, when near the ankle, where the blood supply is poor, often have difficulty fusing. This is also the case with hip fractures. Delayed fusion and additional surgery are common. Proof of malpractice is rare.

2: THE OBSTREPEROUS PATIENT

An angry patient, or a non-communicative one, will likely prove to be a poor witness. Lawyers beware!

1: THE CHARMING DOCTOR

An open, honest doctor, who is not defensive, admits disappointment and who has the classic “bedside manner,” will prove to be a formidable adversary during the process of litigation.

When considering the merits of a case, try to draw inferences on the physician. Some of these include:

How competent is the physician in general – i.e. is he board certified in his particular discipline? If not, this bodes poorly for the physician.

What does the physician do when he doesn’t know something, forgets, or is confused by conflicting information? What resources does he turn to? Does he ask his colleagues for help?

Is there evidence of complacency or not caring? Even though I don’t know the answer, I’ll play the numbers – most people will recover on their own. Or is he relentless in finding the answer. Did he refer the patient to one or more specialists? Was he relentless in finding the answer?

Is the doctor versed in the standards of care and best practice for his particular field? Does he possess the baseline knowledge to know that he may be faced with a problem and that problem may be beyond him?

How many patients has the physician seen for each day that he works based on three and six month data. Is he overburdened or burnt out?

How does the physician interact with his patients? Is he engaging, professional. On average, how much time does he spend per patient encounter?

Does the evidence show that the physician, in general, fails to listen to patients, spend adequate time with them, or communicate empathetically with them?

Is there evidence of present or recent substance use or abuse? A physician who has documented recovery should not necessarily raise alert, but present frequent use of intoxicants can definitely affect cognitive capabilities and impair judgement.

What sorts of activities has the physician undertaken to stay abreast of his field?

Presumptions and Res ipsa loquitor

I thought this doctrine was one to learn and forget. Well, it may be worthwhile to know about this obscure doctrine. If hiring an expert witness is not practical, or if an expert cannot be had, RIL may provide a parachute. RIL has a deep-rooted history in Massachusetts malpractice case law.

Liberatore v. Town of Framingham, 315 Mass. 538, 542 (1944);

Coyne v. John S. Tilley Co., Inc., 368 Mass. 230, 235–237 (1975);

Garrett v. M. McDonough Co., 297 Mass. 58, 60 (1937);

Evangelio v. Metropolitan Bottling Co., 339 Mass. 177, 179–180 (1959);

Polonsky v. Union Hospital, 11 Mass. App. Ct. 622, 624 (1981)

Bennett v. Winthrop Community Hosp., 21 Mass. App. Ct. 979, 981 (1986).

In fact, it appears that Massachusetts has been particularly liberal in its application.

Lipman v. Lustig, 346 Mass. 182, 184 (1963);

St. Charles v. Kender, 38 Mass. App. Ct. 155, 160 (1995);

Ward v. Levy, 27 Mass. App. Ct. 1101, 1102 (1989).

The most frequently referenced case is:

Edwards v. Boland, 41 Mass. App. Ct. 375 (1996).

The doctrine of res ipsa loquitur is simply an application of the rule of evidence which permits jury to draw “reasonable inferences” from circumstantial evidence.

As it applies to medical malpractice and under certain conditions, Massachusetts has recognized RIL thus negating the need for expert testimony to establish the standard of care.

When applicable, the doctrine of RIL permits a finding of negligence; it does not compel such finding. It allows but does not require the jury to the drawing of such inference. In my view, the case would have to be fairly straight-forward and the breach obvious. The nature of the malpractice need be obvious to a layperson.

“the plaintiff’s nerve and artery would not have been severed if not for some negligence on the part of the defendant (surgeon).”

The boundaries of the doctrine have not been fully drawn in Massachusetts. The cases that have denied its use have been where the medical issue is clearly too complex or where the doctor’s negligence was ambiguous.

Haas v. U.S., 492 F. Supp. 755 (D. Mass. 1980);

Semerjian v. Stetson, 284 Mass. 510 (1933).

When An Expert Is Not Practical

In a medical case, you may not need an expert witness to get through the Tribunal. If I am comfortable, I may be able to provide the necessary testimonial.

“a proffered expert need not be from the same branch or school of medicine as the defendant, as it “[i]s well established that the professional specialty of a medical practitioner offered as a witness need not be precisely and narrowly related to the medical issues of the case.” § 5.9.Substantive requirements of the offer of proof, 51 Mass. Prac., Professional Malpractice

The Continuous Tort and The Slumbering Injury

When facing a scenario where the statute of limitations is at issue, remember to consider the concept of the slumbering injury and the point in time in which the plaintiff became aware of his injury.

Slumbering injuries are those which are present but not yet known to the damaged party. Often the injury will be “dormant” and will not manifest itself for lengthy periods of time – perhaps until a period beyond the statute of limitations.

Realizing that some injuries are not ‘revealed’ until years after occurrence, Massachusetts courts often rely on the doctrine of continuous tort. A continuous tort involves an injury which is inflicted at one moment but is disclosed to the injured party or is discoveredby the damaged plaintiff at some time beyond the statutory period for bringing a cause of action concerning that injury.For purposes of the statute of limitations, the plaintiff is sometimes able to maintain a cause of action even in the face of delayed manifestation of a latent injury. 5

David E. Frank, Odds Against Tort Plaintiffs in Massachusetts, Mass. Lawyers Weekly, June 14, 2010, http:// http://www.dolanmedia.com/view.cfm?recID=602147.
Improving Diagnosis in Health Care. (2015). National Academies of Sciences, Engineering, and Medicine. doi:10.17226/2179
25-Year summary of US malpractice claims for diagnostic errors 1986–2010: An analysis from the National Practitioner Data Bank (BMJ Quality and Safety; April 22, 2013)
How Doctors Think, Groopman J. Boston, MA: Houghton Mifflin; 2007. ISBN: 0618610030.
Susan S. Septimus, The Concept of Continuous Tort As Applied to Medical Malpractice: Sleeping Beauty for Plaintiff, Slumbering Beast for Defendant, 22 Tort & Ins. L.J. 71, 72–73 (1986)

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