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"Odds Are" Medicine: Presenting the Failure to Diagnose Case

Presenting the Failure to Diagnose Case

When a patient suffers or dies because of a misdiagnosis, the defense bathes the jury with sanctimonious adages. “Diagnosis is an act of professional judgment”. “An erroneous diagnosis is not proof of negligence.” “Physicians are not insurers of their patient’s health”.

Diagnosis is a process not just an end result. A wise expert once testified that: “Sometimes the worst thing a doctor can do for a patient is render a diagnosis, because then he stops thinking”. Too often physicians lock in on their initial clinical impression and this becomes their final diagnosis come hell or high water. To justify their half baked conclusions, defendants maintain that their bad diagnosis was reasonable and that adherence to one school of thought versus another is not negligence. A diagnosis is reasonable only if the diagnostic effort was prudent. As for the schools of thought concept, that case law applies to treatment, not the diagnostic process. Treatment presumes a valid diagnosis.

“Odds Are” Medicine derives from a failure of the diagnostic effort. Oftentimes the clinical data available to the doctor is ambiguous and could support several diagnoses. The imprudent or lazy physician takes a shortcut. Rather than order objective testing to establish the correct diagnosis, he gambles and goes with the most likely medical cause. “Odds are that burning chest pain is just heartburn from acid reflux”. “What are the chances this fifty year old lady would be having angina?” The doctor is laying a bet that the patient will pay off with her life. In truth the same nerve provides sensation to both the heart muscle and the esophagus. Only objective testing (stress EKG or angiography) can distinguish between the two sources of chest pain.

When taken to task the defense and their experts drag out the old medical school truisim: “When you hear hooves, you don’t think of zebras”. The response to this is: “Unless you’re blind or reckless, upon hearing hooves you look up and see for sure what is coming”. On cross-examination the defendant can be forced to concede his diagnosis proved wrong based upon the patient’s outcome. Defense counsel will then cry that plaintiff is employing the “retrospectoscope”. The response is that proper testing would have revealed the answer early on. In effect: “They have eyes but they see not”. By playing the odds, the doctor plows ahead into treatment with blinders on himself as well as his patient. Routinely these medical gamblers take it upon themselves to make the decision on behalf of the patient to forego objective testing.

The physician’s diagnosis cannot be reasonable if the diagnostic effort is wanting. In Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La. 1991), our Supreme Court stated, “a mistaken diagnosis constitutes malpractice when the physician fails to exercise that standard or degree of care in diagnosing which should have been used by a competent member of his specialty”. In Martin the physician was found liable for persisting in a diagnosis of a viral illness in the face of abnormal lab studies suggesting the need to rule out lupus. Quoting from Sewell v. United States, 629 F.Supp. 448 (W.D. La., 1986) the Court stated, “This finding is consistent with the basic rules of medicine [which] require that doctors rule out all life-threatening illnesses that the symptoms could have indicated”. See also Slavich v. Knox, 99-1540 (La. App. 4 Cir. 12/15/99), 750 So.2d 301 where the court stated: “an abnormality cannot be ignored, and failure to properly follow-up … breaches he standard of care”.

The antidote for “Odds Are” Medicine is the process known as Differential Diagnosis, a universal component of physician training and mental discipline. We are blessed to have a case that succinctly and clearly describes the requirements of differential diagnosis. Corley v. State, Dept. of Health and Hosp., 32,613 (La. App. 2 Cir. 12/30/99) 749 So.2d 926, reads as follows:

“A physician is required to take a thorough history based upon a patient’s presenting signs and symptoms. A physician is required to perform a physical examination based upon the patient’s presenting signs and symptoms. If the findings from the medical history and physical exam support a diagnosis, one should be made and treatment instituted.

When, however, in treating a patient a diagnosis cannot be made, at that time a differential diagnosis should be made, which includes all reasonable, plausible and foreseeable causes for the signs and symptoms noted in the patient. After forming a differential diagnosis, it is the physician’s duty to rule out all imminent, serious and life-threatening causes for the signs and symptoms. This includes performing or ordering diagnostic tests or studies which will assist in ruling in or out imminent, serious and life-threatening causes.

Physicians are obligated to rule out these imminent, serious and life-threatening causes first. Failure to eliminate these causes can subject a patient to a foreseeable risk of harm and would further constitute a breach of the applicable standard(s) of care.

In a misdiagnosis case, I would strongly urge that this passage be incorporated in your case. Prepare a blow-up to present to the jury. Have your experts endorse the language and refer to the blow-up in their testimony. Employ it in opening statement and offer the blow-up as an exhibit. Extract concessions from the defendant and his experts that they were all trained in the method. Submit a jury charge citing Corley and quoting the language. Astute defense counsel will object that this is a quote from an expert in Corley, not a statement of law; but you can counter that it is a fundamental standard of practice in medicine that the court embraced in its reasoning.

By sidestepping the process of differential diagnosis defendants resort to “Odds Are” Medicine. Play this up in the theme of your case as enunciated in opening and summation. For example:

This case involves opportunity, objectivity and odds. The defendant had multiple opportunities to make a correct diagnosis. Objective testing would have provided the answer. Instead the defendant played the odds but Mr. Jones paid the price, his life. Defendant denied his patient the opportunity to decide on further testing. Mr. Jones did not know objective testing was warranted. Odds are he would be here today if the defendant did not gamble with his life. Instead, he is 100% dead.

The theme can be set up in voir dire by questioning prospective jurors on gambling. “What is the largest wager you ever made?” “Would you gamble with your health or your life?” “Should a doctor be allowed to gamble with his patient’s health or life?” “Should the patient have the opportunity to decide what chances he is willing to take?”

Remember, when a doctor plays the odds, he is condemning a certain percentage of patients to misdiagnosis and mistreatment. Jurors suffer doctors acting like gods but they do not tolerate them playing God. The more opportunities the doctor passes up to make the correct diagnosis, the greater the violation of the patient’s trust and the more a jury will award in damages In the words of that famous legal scholar, Mike Ditka: “Odds are for people with bad habits.”

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