CASES INVOLVING DELAYED DIAGNOSIS POSE UNIQUE CHALLENGES FOR PLAINTIFF LAWYERS
When thinking about medical malpractice, extreme circumstances such as botched surgery may come to mind. An article posted by Canadian Lawyer Magazine considers a more nuanced case of medical malpractice, delayed diagnosis. A case involving delayed diagnosis differs slightly in that the conduct giving rise to the claim isn’t as obvious.
Typically, causation is determined by asking whether the substandard medical care caused the outcome. However, in a delayed diagnosis case, the medical professional likely did not cause the underlying condition or injury which led to the unfortunate outcome. This creates a more difficult job for plaintiff employers who have to establish causation.
The question becomes whether or not the delay in treatment or diagnosis caused the patient’s outcome and if the medical professional breached the standard of care or contributed to the delay. The delay must have caused the outcome and there must be a connection between the substandard care of the medical professional and the delay. Both of these factors must be proved for the plaintiff to be successful in the case.
Should the plaintiff be able to prove the delay caused the outcome and the connection to the substandard care, the plaintiff now is burdened to prove that the medical provider breached or fell below the standard of care. Asking these questions creates more hurdles for plaintiff lawyers to overcome.
- A patient who was regularly followed by their family doctor but visits a specialist and is diagnosed with cancer
- An ER doctor incorrectly determines an arm or leg laceration to be minor and the patient has permanent loss of function due to an overlooked tendon injury.
In both these examples, the firms must investigate to determine if there was a potential condition that wasn’t diagnosed in a timely manner, causing a worse outcome for the patient.
While circumstances are case-specific, delayed diagnosis generally can be some of the most challenging cases for plaintiffs. First, there is often difficulty proving the standard of care. Expert opinions are required in medical malpractice cases but with delayed diagnoses, experts aren’t able to use an outcome-based analysis. These experts must put themselves in the shoes of the doctor when they were first presented with the patient and imagine they don’t know what the outcome may be.
Think back to the example of an ER doctor who incorrectly assessed the patient’s hand, not knowing they had a tendon injury that may cause permanent damage. The plaintiff’s expert must only consider the evidence available to the ER doctor at that time and assess their conduct accordingly.
Should the expert find there was a breach of conduct, there is still the issue of establishing causation. In delayed diagnosis, proving causation is not as straightforward as in other types of medical malpractice cases. The plaintiff must prove, based on evidence, that if the diagnosis had been made in a more timely manner, there would have been a better outcome. Under Canadian law, “loss of chance” isn’t compensable. The plaintiff needs to prove that it is more likely than not that there would have been a better outcome. Rather than they would have had a chance at a better outcome, the plaintiff must establish there would have been a better outcome.
MedMalDoctors has an extensive list of specialists and expert witnesses to serve lawyers in their Medical Malpractice cases.
MedMalDoctors provides expert evidence-based opinions on Causation and Standard of Care regarding potential Medical Malpractice. To learn more about how MedMalDoctors can assist you in your next Medical Malpractice case, call us at 1.800.590.9631 or send an email to firstname.lastname@example.org.
From Canadian Lawyer Magazine