The Legal Way Episode 8 | Beyond The Stethoscope: The Legal Consequences of Misdiagnosis

In this episode of The Legal Way Podcast, join Friedman Schuman medical malpractice attorneys, Melissa Paris Miller and Megan G. Knoll as we delve into a critical aspect of medical malpractice law – misdiagnosis. Join us as we provide a comprehensive overview of this complex issue, discussing common scenarios, legal considerations, and the profound impact misdiagnoses can have on patients and their families. Whether you’re a legal professional, a healthcare provider, or someone who simply wants to understand more about this critical topic, this episode offers valuable insights into the evolving landscape of medical malpractice law.

EPISODE TRANSCRIPT:

Alyson: Hi everyone and welcome back to the Legal Way podcast. My name is Alyson Layser and I am your host. I’m also the director of marketing here at Friedman Schuman. Today I’m joined by two guests, Melissa Miller and Megan Knoll, and they are two attorneys in our medical malpractice department. Today we’re gonna be talking all about misdiagnosis and we are really excited to dive into today’s topic. So, before we dive into it, I’m gonna let Melissa and Megan introduce themselves and then they’ll take it away. So welcome guys to the podcast.

Megan: Thank you for having us.

Melissa: Yeah, thank you.

Alyson: So Melissa, you want to introduce yourself?

Melissa: Sure, so I’ve been an attorney for, I guess, 12 years now. I’ve been with Friedman Schuman for almost eight years. I primarily specialize in medical malpractice. I also handle some products liability and some crime victims’ cases as well. And I’m interested to get into the topic today.

Megan: Hi everyone, my name is Megan Knoll and I’ve been a practicing attorney for about seven years now, focusing primarily on personal injury and medical malpractice as well as some products liability. I’m happy to be here today.

Alyson: Awesome, thanks so much for sharing. So now that we’re gonna dive into it, first question. What is misdiagnosis and what is delayed diagnosis? Are there any differences, similarities?

Megan: Sure. So, misdiagnosis occurs when a physician or other practitioner makes an incorrect diagnosis. And that could be based on a number of factors, including improper testing, lack of testing, failure to review results properly. And that all oftentimes can lead to what another topic today we’re discussing is delayed diagnosis. And that occurs when a patient ultimately does receive a second opinion and receives the diagnosis that they should have received when they saw their first provider. And that delay in treatment can oftentimes lead patients to suffer devastating consequences, sometimes even losing their lives. So— it’s a really important topic in our field and understanding why they happen and how often they happen. It really is a topic of discussion.

Alyson: That’s really, really great information. I know that when I first started learning a little bit about malpractice and misdiagnosis, I had no idea that delayed diagnosis was even something to think about or consider. And I feel like a lot of people don’t even realize that there are differences between the two. So that’s really great to know. So next question, what are the most common types of misdiagnoses, I guess you would say, that you see in your line of work?

Melissa: So, typically the types of cases that we’re seeing revolve around failure to timely diagnose a patient’s cancer, failure to timely diagnose stroke, different cardiac conditions, heart attack, blood clots. Oftentimes there’s also failure to diagnose infection, which can lead to a more serious infection known as sepsis. All of these conditions obviously are life threatening. So sometimes we have patients who fortunately are able to get timely intervention from another practitioner in getting a second opinion, but oftentimes, because these are critical conditions in and of themselves, we’re talking to family members of people who’ve passed because of the failure to timely diagnose them. And often the settings that we’re seeing these types of cases in are in the emergency room with primary care doctors, and oftentimes radiology imaging is a part of diagnosis of these conditions. So, we do have cases against radiologists as well.

Alyson: Gotcha, that definitely makes sense. Do you think also that sometimes, or do you see sometimes that these cases arise because some conditions, like the symptoms look like the symptoms of another disease or illness or something and doctors can’t tell the difference between those?

Melissa: Yeah, so oftentimes there is some overlap. However, a practitioner, when presented with a patient who is reporting complaints is supposed to go through this process known as differential diagnosis. And essentially, they are listing from the most critical first, the potential diagnosis here. And the practitioner is the one who’s responsible for doing these different tests, performing these different follow-ups, getting the patient to the correct specialist in order to arrive at the correct diagnosis in a timely way. So, you know, we do see, you know, certainly issues with that process when differential diagnosis either isn’t performed or the ruling out process isn’t performed properly.

Alyson: That makes sense. So how can a patient determine if they have been misdiagnosed? And do you find that, you know, a lot of times patients are unaware for a significant amount of time that they have been misdiagnosed?

Megan: Sure. So, the reality of the situation, and it’s unfortunate, is patients typically do not find out that they have received a misdiagnosis until they’ve sought a second opinion and taken proactive steps to determine what their proper diagnosis is. So, in terms of patient advocate for themselves, a patient needs to advocate. They need to seek second and third opinions if they’re not receiving care that they feel they should, if their symptoms are not being listened to by their provider. And that can help determine whether the patient is diagnosed. Oftentimes, as you mentioned, there is a delay in them receiving that second and even third opinion if necessary. And that is a loss of valuable time where they ultimately could have been receiving life-saving treatment. So patient advocacy, I would say, is the first thing to prevent misdiagnosis. When a patient does ultimately receive their correct diagnosis and the prognosis is poor or, as I said, they’ve lost valuable time that they should have been treating, it’s imperative also that they contact an attorney who can get the medical records and do the necessary investigation to determine whether or not they have a viable malpractice case.

Melissa: It’s important too that the time period is addressed with regard to misdiagnosis and delayed diagnosis. Obviously, it depends on what the medical condition is. Sometimes a few days can be critical and lead to unfortunately untimely passing. Like in the case of a failure to timely diagnose infection, that patient can become septic very quickly, will result in organ failure and ultimately their passing. In other cases, though, that we’ve had, for example, like a failure to timely diagnose cancer, we’re not only focused on the mistake or the deviation in the standard of care, the fact that this patient should have been notified earlier, but we’re also looking at what additional harm it caused the patient. So…typically, that would mean for a cancer patient, did they have to undergo more extensive surgery or surgery in the first place? Did they have to get more chemo or radiation treatment? And so, usually, when we’re looking at and investigating those cases for patients who’ve had this delay in diagnosis of cancer, you’re actually sort of looking at maybe a six month delay in that type of situation in order to see that additional treatment actually be involved and prescribed. So, it kind of depends on obviously the type of condition and it’s not like a strict guideline in any way. We need to investigate all of these claims to see if we can meet the elements to move forward.

Alyson: Great, that’s really great information. And I wanna go back to your point about patient advocacy. I feel like a lot of patients maybe don’t realize that they can advocate for themselves. And so, from a medical malpractice attorney standpoint, is there any advice or any tips that you would give someone as they’re kind of going through this process and trying to find answers and trying to advocate for themselves?

Melissa: Sure, and I think there’s a few things that you can do even to try to prevent a situation from this occurring even. So, if you have the ability to have a family member come with you to certain doctor’s appointments, obviously that can assist in prevention of delayed diagnosis or misdiagnosis. Make sure that family member is aware of why you’re going to the doctor’s appointment. Explain to them what your symptoms are and why you’re seeking out treatment. Taking notes during appointments is really helpful. Some practitioners, in fact, will allow a patient to record appointments. So, you need the doctor’s permission in order to do that. But…yeah, that’s an option as well. And then now with changes to the HITECH Act and the prevalence of patient portals, we are now getting in real time blood test results and radiology results sent to our patient portal, oftentimes at the same time or even before practitioners who ordered those tests have an opportunity to look at the results. So, it is important to obviously get those results interpreted by your physician, but at the same time, you can be in control of at least knowing that the results came in and asking questions about those results to try to prevent a situation where there is this lack of follow-up by an ordering physician and then the patients left in the dark. So, I just think it’s very important, and this was something that had come up in a case of patients do not assume after they get a test, either radiology or blood tests, that no news is good news. That is, you know, not necessarily true. And hopefully with the changes to the HITECH Act and the patient getting at least knowledge of the results, some of these problems can be avoided. But it’s just very important either to make a follow-up appointment, call, and advocate for yourself ultimately.

Megan: And to Melissa’s point, it’s not enough that you receive the results. When you receive the results, there’s going to be medical terminology you’re unfamiliar with. There will be no plan or course of action on your portal that is sent with results. It’s important that you advocate, you make that call to your provider to get those results interpreted, because a layman obviously won’t know what a lot of these things mean, and be your best advocate in a medical standpoint. From a medical standpoint.

Melissa: Yeah, we don’t want anyone to confuse a Google search with a medical degree by any means. But just the knowledge that the results came in can give the patient a lot of power in following up for themselves and not just being dependent on the health system or the practitioner to do so.

Alyson: Absolutely, those are really great points. I know I’ve even used some of those little tips as I’ve gone to doctor’s appointments, and it really does, it makes a huge difference just to have somebody there with you or to take notes just to look back on, because a lot can happen in a doctor’s appointment that you might forget when you get back home.

Megan: And selecting your provider, you wanna be with someone who you’re comfortable with. You need to be comfortable to ask questions of that provider about why they arrived at a certain diagnosis or why this course of treatment was selected as compared to others. Understanding really the comprehensive healthcare plan from your provider also would be helpful for a patient in avoiding this diagnosis or ultimately seeking a second opinion if they aren’t comfortable with their provider and the care they received.

Alyson: Definitely, definitely. Thank you guys so much for sharing that. So, onto our next question, and we touched on this a little bit, but are there any steps that patients can take to prevent a misdiagnosis?

Melissa: I mean, I would ultimately say with regard to making follow-up appointments for yourself, checking the patient portal regularly, what Megan had suggested about asking questions of the provider, you can do that either over the phone by making an appointment or even messaging through the patient portal how you’re describing your symptoms or your complaints to the provider. Sometimes if the condition lends itself to taking a photograph or if you’re having difficulty with mobility, making sure you’re taking a video of that or if you have any kind of documentary evidence as to how frequently it’s happening. Obviously, coming to the appointment with that information certainly can help. But, you know, ultimately the patients who find themselves in the situation where we pursue cases, you know, it is not the patient’s responsibility to diagnose themselves. And that’s important to keep in mind here. It is the physician or the nurse practitioner or the physician’s assistant who have been trained who have been educated on how to first perform that differential diagnosis that we talked about before, know what tests to follow up on, know what specialists to refer to or get involved in consulting on the patient’s care. So, you know, oftentimes we see patients who become clients that do blame themselves for being in this situation, but we wanna make clear that while you can do everything in your power, to try to follow up and try to report clearly, the responsibility and ultimately the liability lies with the practitioner, which is unfortunately why we have these cases in the first place.

Alyson: Yeah, definitely. So, moving on to the next question, when a patient determines that they have been misdiagnosed, what are some of the legal elements that are needed to really proceed before creating a lawsuit?

Melissa: So, with regard to the elements, it’s first we need to identify what the delay or misdiagnosis is. So, by doing so, you’re looking at, was there a deviation in the standard of care, which is basically legal terms for what was the medical mistake? And if you think of it like getting a score on a test, you know, a physician who gets a D or an F is violating the standard of care. Under the law, a physician who gets a C is still considered acceptable. Obviously, all of us deserve A-grade care, but, you know, unfortunately, that doesn’t happen. So, if we’re able to satisfy that first element of the deviation of standard of care, which often, you know, in these types of because they’ve gotten that second opinion already, we move on to the next element, which is called causation. And so, under causation, we’re looking at, well, did this medical mistake or the D or F on the test, what harm did that cause the patient? Now, in situations where you have infection or stroke or cancer, we’re not alleging that the physician or the…PA or nurse practitioner gave the patient those conditions. We’re looking at, okay, well, how did this failure to timely treat or diagnose cause additional harm to the patient? So, in the context of cancer, we talked about the additional treatment. With stroke cases, there’s certain medications that can be given, and they have to be given within a certain time period. So, if you’re now outside of that time period, which is only a few hours, then you may have a case, same for infection, we’re talking about a matter of days with regard to timely diagnosing it. So, after you meet those first two elements, the deviation of standard of care and causation, then we move on and evaluate the patient’s damages. So, you have to do the legal analysis before you really talk about their injuries.

Megan: And with regard to causation, Pennsylvania does not require absolute certainty that the deviation from the standard of care directly caused the patient’s injury. In Pennsylvania, we have an increased risk of harm, which Melissa touched on, that allows a patient to say, their actions substantially impacted my outcome, my prognosis. They substantially cause the damages. So that’s something that’s somewhat unique to Pennsylvania in that you do not need a 100% absolute certainty that the physician’s injuries, or I’m sorry, the physician’s negligence directly caused the injury.

Alyson: Okay. That’s really interesting. I didn’t know that. And definitely helpful for people that are trying to file a misdiagnosis case, for sure. So, what exactly is the process of filing a misdiagnosis lawsuit?

Megan: Sure, so when a person suspects that they’ve been misdiagnosed or they receive a delayed diagnosis, the first step is contacting an experienced medical malpractice attorney. And that attorney will collect necessary medical records from that provider and perhaps others. They will send those records to an expert. In Pennsylvania, you have to get expert report in order to file the lawsuit, which prevents frivolous claims from being brought against healthcare providers. Once you’ve received the expert report that suggests that the breaches in the standard of care occurred, that they caused the patient harm, then you are able to file a complaint. And a complaint is essentially a document that’s filed with the court that commences the lawsuit. Once that lawsuit is filed, the parties engage in what’s called discovery. In terms of discovery, it’s sending written requests for documents. It’s asking written questions of the defendant about the care that was received, that was given. We’ll also conduct depositions, which are essentially question-and-answer sessions under oath with the providers and with people involved in the care to determine what actually occurred. And in that process, we try to get as many answers to questions that patients or patients’ families may have about what happened. Oftentimes we’re able to answer what happened, but sometimes not why it happened. And that’s something that’s a little bit challenging for families to grasp in a lawsuit. But we try to get every, we leave essentially no stone unturned in terms of investigating for the patient and on the patient’s behalf.

Melissa: Yeah, our goal is to try to investigate before filing a lawsuit and also certainly once we meet the legal elements and during litigation of a lawsuit to try to get as close to the truth of what happened as possible. And so, there are a lot of ways for us to do that, but that is ultimately our goal. And just going back to the investigation process, so oftentimes when people come to us with these potential cases, they tell us their story and they want to know if they have a lawsuit. So, it is important that we go through the process that Megan identified. Certainly, during that initial conversation and us as lawyers looking at the medical records, we can identify what I call just red flags. But ultimately, in order for us to file the lawsuit, we do need that expert support. That expert is the same type of provider as the potential defendant. They’re treating patients just like our client. And so, we rely on them to tell us if there is a case or not. And so, it’s just important that we actually go through that process before we can say whether we can file the lawsuit.

Alyson: Definitely. And two questions for you, actually. Does the expert have to be from that same state that the lawsuit is taking place in?

Melissa: No, that’s a good question. So, they don’t. Under the MCARE Act, which is basically what controls this area of the law, the expert has to have the same type of qualifications or the same type of experience as the potential defendant. But because there are essentially national standards of medicine, you don’t need a local expert, which actually helps us a lot because understandably, an expert from Philadelphia might not feel comfortable professionally opining against a potential defendant, let’s say in Harrisburg or even now as far as Pittsburgh. So, it also depends on the specialty as well. Some specialties are much closer circle. So, we do our best and our goal really is to find the most qualified expert, not necessarily the most local expert. So…

Megan: And throughout the life of the case, depending on the complexity of the case, you could have upwards of three, four, five different experts. You have experts on liability. You can have experts that will tell you that the breach in the standard of care caused the harm. And you can also have economic experts to tell us a little bit about damages, such as lost wages, loss of earning capacity. If a patient had not suffered those injuries, what their long-term economic status would be. So, it’s certainly not a one-person show in that regard. There’s many different experts that may be needed in one case.

Melissa: Yes. Sometimes even people who have passed will have pain and suffering experts to go through the records and write a report about what that person went through. You know, again, the experts, they don’t give depositions in cases. So, when we’re in litigation, they prepare reports, and that’s how they communicate their theories. And I should say that’s in the state court, but, you know, in federal court, they do give depositions. But, you know, we handle matters pretty much all over. So, whatever is needed is what we get for the case. And there are these different types of experts, thankfully, that can help us in supporting the claims.

Alyson: That’s really great to know. And that leads really nicely into another question. You touched on the life of the case. How long typically can you say a medical malpractice case will last?

Melissa: I would say in general, now these were pre-COVID numbers, I would say in general, from the time you file the lawsuit to when you would go to trial would be two years. Since COVID, unfortunately, there’s been a lot of delays, which has caused a backup. Now we’re looking at longer than that period of time, but our job during the life of the case is to be as aggressive as possible, getting the answers to the written questions we served, getting the deposition scheduled and trying to push the case forward. And so even with these obstacles with COVID, we still have been able to do that. And hopefully things will clear up with new case management measures being rolled out in different counties around the state.

Alyson: That’s great to know. So, before we wrap up, one last question for you about the statute of limitations. So, what is statute of limitations and what does that look like when you’re filing a Med Mal case in Pennsylvania?

Megan: Sure. So, the statute of limitations is the amount of time you have to file the lawsuit. So, in Pennsylvania, there’s two sort of separate rules of thought in terms of the statute of limitations. It can be two years from the date that you were injured. So, for example, two years from the date that you received your misdiagnosis, you must file a lawsuit or else your rights will be lost forever in other cases, it’s two years from the date you discover that you have been misdiagnosed or that an injury has occurred. And that’s important, especially in cases with delayed diagnosis, because oftentimes, say for example, a patient comes in with a lump in her breast and she’s told it’s completely benign. Three years down the line, so past that two-year limit from when she was misdiagnosed, she finds out that actually it was cancer, and now she’s a stage four cancer patient. That allows her to still pursue her claim, despite it being two years longer than—or, I’m sorry, a year longer from when she discovered. So, that’s important for, obviously, the ability for patients to file these lawsuits in cases where time may have been—she may have suffered tremendously, and, you know, she’s still able to pursue a claim despite it being—more than two years past the misdiagnosis.

Melissa: Yeah, it’s always important to go to a lawyer as soon as possible so the lawyer can help evaluate your claims and determine if they’re still within the statute of limitations. But just because it’s been two years since the original misdiagnosis does not necessarily bar a person from pursuing a lawsuit like this.

Alyson: That’s really, really great to know. I feel like that is information that a lot of people probably don’t realize when they are trying to pursue a case like this. So that’s really great information. Well, now that we have reached the end, is there anything else that you guys would like to share on this topic? Or do you think we’re ready to wrap it up? It can be anything.

Melissa: I think it covered a lot of really helpful information for people listening and watching. So again, it’s just be an advocate for yourself, make sure that you’re following up after you’ve had test results done. And if you find yourself unfortunately in a situation like this, first it’s important to get the care that you need and then…second, if you do have these questions about whether you can pursue a lawsuit or not, to come to an attorney who specializes in medical malpractice specifically.

Megan: And oftentimes, this can feel somewhat clinical. You’re coming to an attorney, you’re collecting medical records, but it’s not lost that there’s a person behind the medical records, and there’s a family oftentimes who’s grieving the loss of that person. So, when you do select an attorney or even providers, you need to be mindful that you need to go to someone who you’re comfortable with sharing things, because it’s not an easy, you know, life of the case, as we described. You’ll be discussing very, very difficult topics. You’ll be—it’ll obviously be very emotional for you. So, I think that is something that’s often overlooked, that filing a lawsuit isn’t you file the lawsuit and then you settle or you go to trial right away. It’s an arduous process. And having the strength and support of your family is imperative, but also having a person who can advocate for you and not miss out on that emotional need that you may need as a client is important.

Melissa: Yeah, our clients have a whole team in their corner. So, on our cases, we typically have two attorneys assigned, in addition to at least two paralegals, and then we have two legal assistants who help as well. So, it is a team effort, which I know makes families and clients who were patients of misdiagnosis and delayed diagnosis feel really good that finally someone is advocating for them. But Megan’s right, no, it is not an easy process to bring a lawsuit. So, we’re here to help guide people through that process and hopefully it’s not too late to try to make the situation better for them.

Alyson: Absolutely. Well, I know that all of your clients are very, very lucky to have your team in their corner for sure. Thank you guys so much for joining and I’m excited for you guys to be back soon. I know that you guys shared a lot of really great and valuable information and I’m sure listeners gained a lot from it.

 

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