Medical Malpractice Lawyer Cleveland, OH
As a medical malpractice lawyer Cleveland, OH, I routinely review cases involving delayed diagnosis and delayed treatment. The following is the discussion of the analysis that goes into deciding whether or not a provable case of medical negligence exists when a patient’s condition is not timely diagnosed or treated and a bad result occurs. This blog post discusses both when a delay in diagnosis results in a delay in treatment, but also when a delay in treatment occurs after the correct diagnosis is made.
Delayed diagnosis cases frequently arise when there is a delay in diagnosing or treating cancer, infection, sepsis, spinal epidural abscess, meningitis, dissecting abdominal aortic aneurysm, impending heart attack, stroke, paralysis or any other medical condition that requires urgent or emergent treatment.
One of the most difficult aspects of representing families who have been victimized by a medical error, medical mistake or medical negligence is that the family bears the burden of proving the elements of a claim for medical negligence. The burden of proof under Ohio law is by a preponderance of evidence, meaning that the facts supporting each element of the claim must be proven to be more likely true than not. This is distinguished from the criminal burden of proof which requires proof beyond a reasonable doubt. The civil burden of proof is established when a fact is 51% or more likely to be true. However, in medicine, it is frequently difficult to prove facts by a preponderance of the evidence due to factual disputes, lack of information, incomplete or inaccurate medical records, disputes between medical experts, the lack of medical studies evaluating outcomes when substandard care is provided, and patient factors that are exploited by insurance company lawyers (e.g., smoking, obesity and other comorbidities).
In order to prove that a delay in diagnosis or delay in treatment caused harm, the plaintiff bears the burden of proving that, more likely than not, the delay worsened the patient’s prognosis. This is shown by proving that the patient’s condition was more likely than not curable with earlier diagnosis and treatment. In other words, had the treating doctor, nurse or other healthcare professional followed accepted standards of medical care, the patient more likely than not would have survived the illness or avoided another serious injury, like a stroke, brain injury, or amputation. There are two parts to this analysis. First, the patient bears the burden of proving that their chance of survival (or avoiding grievous injury) prior to the act of medical negligence was greater than 50%. Second, the patient must prove that the likelihood of survival (or avoiding permanent injury) was less than 50% as a result of the act of medical negligence. Usually, the second part of this equation is easy to prove. For example, when a patient dies as a result of a disease, the bad outcome is established.
However, the first part of the equation is difficult to prove. In other words, it can be difficult to prove convincingly that earlier, proper treatment would have altered the course of the disease. In the case of cancer, the patient’s prognosis at the time of the medical error is established by cancer staging which shows that a patient’s chance of survival is less than 50%. A skilled medical malpractice lawyer will carefully review prior medical records and study the natural history of the underlying disease process in order to understand what the likely prognosis was at the time of the act of medical negligence. Sometimes, prior imaging studies offer clues. Sometimes, the only evidence is the passage of time.
When there is a less than even chance of survival, Ohio law permits a claim for loss of chance. However, loss of chance cases are difficult because the plaintiff’s expert will have to concede that the patient was more likely than not going to die even if appropriate care was given. This is a difficult admission for jurors to understand. Some jurors will dismiss the case out of hand when they realize that the patient was probably going to die anyhow. However, other jurors, following the law, will recognize that any lost chance of survival, even a small percentage chance of survival, is valuable and may have saved the patient’s life.
Often the delay in treatment is a result of a delayed diagnosis or a missed diagnosis. However, sometimes treatment is unduly delayed even when the proper diagnosis is timely made. For example, the results of a biopsy or imaging, like MRI, CT scan or x-ray, can be erroneously posted to a patient’s chart without first being conveyed to the responsible physician. In these cases, various parties might be at fault for the miscommunication. A well-settled principle in medicine is that the ordering physician “owns” the test and its results. However, a radiologist or pathologist who discovers abnormal test results has a duty to ensure that those test results are accurately communicated to the ordering physician. Careful communication in the setting of critical test results requires both a paper report and direct oral communication. In other cases, hospital employees or staff at the doctor’s office fail to properly record or communicate test results to the physicians who are responsible for initiating treatment. Patients fall through the cracks in medicine all of the time, despite standards of care requiring specific steps to avoid miscommunication.
If you or a loved one suffers injury or wrongful death as a result of a delay in diagnosis or delay in treatment, we are here to help. We will carefully review your medical records, study relevant medical literature, and consult with qualified medical experts to get the answers that you deserve. Contact Mishkind Kulwicki Law Firm today for a free, no-commitment consultation.