Chicago Misdiagnosis Attorneys
Malpractice Through Misdiagnosis, Failure to Diagnose & Delayed Diagnosis
Never before in history have doctors, surgeons, and hospitals had such a tremendous array of diagnostic tests, devices, and machines at their disposal to help them determine the cause of a patient's illness, complaint, or disease. In combination with years of specialized medical training, your doctor normally should be able to properly recognize and diagnose your medical condition.
It is vital for the treating physician to diagnose your condition at the earliest possible opportunity, because while some diseases and conditions progress very slowly, others progress very rapidly and must be quickly diagnosed. When a medical condition, such as cancer, is not diagnosed in a timely manner, serious permanent injury or death may be the result. In what manner does a diagnosis usually take place?
The process by which a doctor or surgeon diagnoses a patient's condition may take mere minutes, days, weeks, months, or even years from the initial meeting to a final diagnosis and treatment. But the process usually follows this basic path:
The Initial Doctor-Patient Meeting
Although many people schedule a yearly well-being visit with the doctor, usually people visit the doctor when they are sick. Often times, this is because the person either has inadequate insurance or inadequate free time to visit a doctor otherwise. But even when insurance coverage or money is not an issue, many people simply prefer to stay away from doctors unless they really need medical help. So the reasons that people visit the doctor may be for a regular check-up, because they haven't been feeling well recently, or in some situations, the meeting may not take place at the doctor's office at all and may happen in the emergency room under serious or life-threatening circumstances:
- No complaints of illness - Sometimes, a patient may have no health complaints at all during an annual appointment. Depending on the age and medical history of the patient though, it is common for the doctor to perform standard testing however, which might include blood work, urine testing, an EKG, stress testing, mammogram, and/or various screenings. Even without any complaints of illness, a doctor who undertakes such tests is obligated to carefully examine the findings and determine if anything seems wrong. They should never be glossed over or ignored, simply because the patient has no specific complaints.
We all know that some people complain about everything, and others don't complain about anything, no matter how bad things might be. So a doctor still needs to look carefully at any testing results. If testing shows anything out of the ordinary, the doctor should share these results with the patient and attempt to diagnose the problem, perhaps asking the patient to come back in or perform additional tests. There have been many cases where the lawyer for a patient who was later diagnosed with a condition looked back at previous tests performed during routine annual check-ups and found that the doctor had committed medical malpractice by overlooking clear warning signs.
- Complaints of illness – In more typical circumstances, a patient makes an appointment at the office specifically because he or she does not feel well. At this appointment, the doctor will ask the patient to explain what does not feel right and how long these issues have been going on. The doctor will then ask other questions designed to determine what the source of the complaints may be. The doctor may order specific testing designed to help in his or her determination, or the doctor may make a diagnosis right on the spot if it seems clear what the problem is, or if it seems clear that there is no real problem at all.
- Medical emergencies - The existence of a problem may be clear when a patient either walks into an emergency room or is brought in by paramedics in an ambulance. The injury may be obvious, such as a broken bone, a puncture wound, a lost limb, or a burn injury. But other times, the patient may be unconscious, or may have suffered head trauma, or an apparent heart attack. He or she may be unable to communicate or may have specific serious complaints, but not know the source of the injury or illness. Just as during an office visit, the doctor or emergency surgeon will need to utilize all their knowledge and available resources to properly diagnose what may be an imminent life-threatening situation.
Gathering Medical Data
At the initial doctor-patient meeting (whether in an office or in an emergency room), the doctor needs to gather as much information available to help make as thorough a diagnosis as possible. He or she will listen to the patient's complaints and symptoms. The doctor will also gather as much information as possible about the patient's medical history and the medical history of the patient's blood relatives. If the patient is non-responsive or otherwise unable to communicate, the doctor should try to collect this information from the patient's family or friends who may also be present.
Typically, a doctor will supplement this oral information with a physical examination of the patient as well. If may just be a cursory examination of eyes, eyes, throat and chest sounds, or it may be a more through physical examination. This of course depends on the nature of the complaints, their location on the body and whether they seem to be internal or external.
Depending on the nature of the complaint, illness or suspected disease, the doctor may also order diagnostic testing. Diagnostic testing is basically any medical test that is performed to help detect or diagnose a diseases or illness. Such testing may also be ordered to help chart the progress of an existing disease. Some examples of diagnostic tests include:
- Prenatal testing
- Blood pressure testing
- Computed Tomography, known as CAT scans or CT scans
- X-rays / radiography
- Thyroid testing
- Blood tests
- Colonoscopy / Sigmoidoscopy
- Chorionic villus sampling
- Radionuclide (isotope) scanning / nuclear scans
- Diagnostic imaging
- Positron Emission Therapy, known as PET scans
- Nuclear stress test or radionuclide scan
- Renal Scintigraphy
- Scintimammography, known as nuclear medicine breast imaging
- Skeletal Scintigraphy, known as a bone scan
- Single-Photon Emission Computerized Tomography, known as SPECT
- Thyroid scan
- Magnetic Resonance Imaging, known as MRI
- Fetal ultrasound
- Metabolic panel
- Hemoglobin A1C
- Liver function testing
- Hepatic function panel
- Liver function testing
In the past, a doctor had limited resources with which to investigate and diagnosis patient complaints and illnesses. But today, the number of diagnostic tests and options available for doctors has never been greater.
Once the doctor has collected what he or she believes to be a sufficient amount of medical data about the patient, the doctor will make a diagnosis. The diagnosis may be that there is no problem at all and nothing needs to be done. It may be a diagnosis based on little to no diagnostic testing, as the doctor believes the condition is obvious. Or it may be a diagnosis that evolved over time, involved multiple diagnostic tests, and consultations with other specialists and experts.
But in any event, a medical diagnosis should never be made lightly, prematurely or without the greatest of care taken. That is because once a diagnosis has been made, a series of events will inevitably follow. Those events may be that no course of treatment is necessary or it may be that the patient is recommended to follow a specific course of treatment, medication or therapy. If the diagnosis is correct, then the patient will hopefully get better. But if the condition was misdiagnosed, diagnosed too late, or not diagnosed at all, then the patient will not likely get well and he or she may suffer serious permanent injury or even death under some circumstances.
In making a diagnosis, the majority of doctors use what is called the "differential method," which is basically the process of elimination. In this technique, the doctor gathers information from the patient and perhaps a preliminary physical examination about the patient's symptoms. Based upon this information, the doctor compiles a list of possible diagnoses and puts them in order of likely probability. After that, the doctor will likely begin to test the strength and weakness of each diagnosis by ordering various tests, following up with the patient with more specific questions, and by referring the patient to other doctors who specialize in the particular medical area. During this process, the doctor may find and add other diagnoses to the differential diagnosis list. In the differential method of diagnosis, the doctor attempts to exclude one possible diagnosis after the other, until just the correct diagnosis is left.
There are three basic categories of doctor negligence relating to errors in diagnosis which are 1) Misdiagnosis, 2) Failure to diagnose, and 3) Delayed diagnosis:
About 25% of all medical malpractice lawsuits are for misdiagnosis of a medical condition, disease or illness. In fact, it is estimated that 10% to 30% of all medical cases involve a diagnostic error. Shocking numbers, especially for a medical error that causes the loss of untold numbers of patients' lives each year. Misdiagnosis refers to the faulty decision making process of a doctor who incorrectly diagnoses a medical condition. However, not every misdiagnosis by a doctor is a situation that can correctly be considered medical malpractice. There are many illnesses that have symptoms that are easily confused or that are caused by other factors. Even skillful and experienced doctors sometimes make diagnostic mistakes while exercising reasonable medical care. The important question is ultimately whether the doctor's diagnostic skills met the "standard of care" for other similarly situated doctors or whether the doctor fell below that standard and "dropped the ball."
A misdiagnosis occurs when a doctor decides that the medical condition is one thing, when in fact, it is another. With every diagnosis comes a treatment plan, whether it is medication, chemotherapy, surgical intervention, other treatments, or no treatment at all. If the disease is misdiagnosed, the treatment plan will undoubtedly be the wrong treatment plan for the wrong medical condition. It may allow the disease to progress unchecked or it may exacerbate the illness and create more problems that lead to an even greater likelihood of injury or death. When the wrong treatment is prescribed, this is referred to as "Erroneous Treatment." Such erroneous treatment may also occur when a doctor has properly diagnosed the disease or illness, but fails to properly treat it. It may also happen when the diagnosis is correct, but the wrong treatment or a creative, novel or experimental treatment is given.
Failure to Diagnose
Whereas misdiagnosis involves a doctor who mistakes the symptoms of one illness for another, medical malpractice involving a "failure to diagnose" or "overlooked diagnosis" relates to a doctor who makes no diagnosis at all. It may be a doctor who misses the warning signs, misinterprets the symptoms or ignores the indications altogether, such that no diagnosis is ever made. Or the doctor may view the symptoms as minor and temporary and not likely to benefit from treatment. But for whatever reason the doctor fails to diagnose, the patient may suffer needlessly as the illness worsens as a result, and it may continue to progress to the point where treatment is no longer a viable option to save the patient's life.
A good example of a missed diagnosis is the situation where a person goes to the emergency room with an excruciating headache, vomiting, blurred vision and nausea. He explains that he never gets headaches and this is exceptionally bad. But the emergency room doctor or nurse sends him away with nothing but a free package of Tylenol and tells him to get some rest. The next day, the symptoms persist and he later goes to another emergency room at which time a CT scan is performed and a brain tumor is diagnosed.
Another example is a situation where a woman goes to her general practice doctor with complaints of fatigue, coordination issues, trouble swallowing and hand tremors. After just speaking for a few minutes, the doctor arrogantly tells the woman that her symptoms are the result of her obesity and long hours at work. He sends her on her way and tells her to eat less, work out more and try to take a vacation. Unsatisfied, the woman gets a second opinion from another doctor, who performs a CT scan, PET scan and an MRI, determining that the woman has Parkinson's disease. Each of these examples demonstrates a failure to diagnose, as most doctors would agree that such symptoms should have merited further investigation.
Failure to receive timely treatment is at the heart of "delayed diagnosis" medical malpractice. In a misdiagnosis case, the doctor interprets the symptoms incorrectly. In a failure to diagnose case, the doctor never diagnoses the illness at all. But in the delayed diagnosis case, the doctor does in fact correctly diagnose the disease or condition, but it is diagnosed later than it should have been, or too late for effective treatment.
An example of such delayed diagnosis would be a 70 year old man who visited his doctor with complaints of pelvic pain, urinary pain, and fatigue. Despite his family history of prostate cancer, the doctor attributed the symptoms to his age and overwork. The following year at his annual checkup, he related the same symptoms, so the doctor ordered a PSA test and performed a rectal examination. When the results of the PSA test came back, it revealed elevated antigen levels and likely existence of advanced prostate cancer. As a result of the delay and the advanced state of his cancer, he needed to undergo painful radical chemotherapy with much lower chances of survival than if the diagnosis had not been delayed for a year.
Misdiagnosis of Heart Attacks and Cancer
Of all the types of medical malpractice cases, diagnostic errors constitute the largest percentage of these cases. And of these diagnostic mistakes, the most common involve the misdiagnosis of heart disease, heart attacks and cancer. Every hour of every day, a person walks into an emergency room with symptoms which include some combination of chest discomfort, indigestion, radiating pain, fatigue, sweating and dizziness. Although emergency room personnel are well aware of these warnings signs for a heart attack, inevitably in one ER or another in Chicago and across the country, these signs go undiagnosed or misdiagnosed and a patient suffers a stroke or dies.
Prompt Diagnosis of Cancer is Vital
The need for an immediate and correct diagnosis of a heart attack is well known. If it is not promptly diagnosed and treated, then stroke, long term injury or death may quickly result. Another commonly misdiagnosed medical condition is cancer. Although the need for instantaneous diagnosis and treatment is not as great as for that of a heart attack, the need for prompt diagnosis is just as important. That is because with early detection and proper treatment, survival rates for cancer are much greater than otherwise. If cancer is misdiagnosed, not diagnosed, or the diagnosis is delayed, the cancer may become terminal and the opportunity for effective, early treatment is lost.
Delayed Diagnosis of Cancer May Allow Malignant Cancers to Metastasize
Some cancers such as cervical cancer, skin cancer and lung cancer are relatively easy to diagnose with a simple blood test intended to detect an increase in white blood cells or anemia. Testing of the stool or urine could also reveal the presence of blood. Either of these might indicate cancerous tumors or pre-cancerous cells under examination. A biopsy could then determine if these growths were malignant or benign. But a doctor who fails to properly diagnose the cancer may allow the cancer to metastasize (metastasis is the spread of cancer to other tissues or organs). If the cancer is eventually diagnosed, if at all, it may be too late for treatment.
Cancer Misdiagnosis Based on Mistakes in Testing or Examination
When examining a patient, the doctor may mistake one condition for another, such as misdiagnosing ovarian cancer to be a benign cyst or colorectal cancer to be simply hemorrhoids. A pathologist might misinterpret a biopsy sample and fail to detect a tumor which is malignant. A radiologist might read a mammogram incorrectly, failing to spot breast cancer. A dermatologist might not properly diagnose an irregular mole as skin cancer. A dentist may fail to notice the signs of oral cancer. Yet in other situations, a doctor may improperly diagnose a patient with cancer who does not have the disease at all. A woman might be diagnosed as having breast cancer based upon a false positive or flawed testing, resulting in a lumpectomy or mastectomy, as well as dangerous chemotherapy and radiation therapy. The stakes are so high for proper diagnosis, and yet serious and avoidable mistakes happen every single day.
Cancer Survival Rates Improve with Early Detection
Although in some situations, a patient may have the same prognosis whether the cancer is diagnosed immediately or not, in other situations the prognosis may be dramatically different. Certain cancers such as breast cancer, skin cancer and colorectal cancer respond very well to early intervention and prompt treatment may significantly improve chances for survival of the disease. When a doctor fails to diagnose cancer properly, a lawsuit alleging medical malpractice may be the proper next step.
Common Causes of Medical Misdiagnosis
The reasons why a doctor might misdiagnose a patient are as diverse and varied as stars in the sky. Every doctor brings to the table his or her own experiences, preconceived notions, prejudices, work ethic, level of attention and level of intelligence. Even the same doctor might view essentially the same symptoms differently on different days and offer different prognoses. But some of the most common contributors that lead to misdiagnosis include:
- Misinterpreting test and lab results
- Failing to refer patients to appropriate specialists such as an oncologist for cancer
- Failing to order the appropriate screening tests for diseases and illnesses
- Failing to follow up with patients about test results and medical condition
- Failing to follow up with referred specialists
- Failing to properly screen patients "at risk" for certain cancers
- Discounting the potential for cancer because of patient's age or other characteristics
- Conscious decision not to refer patients for certain testing because of cost or because patient's insurance unlikely to bear cost
- Inadequate time to devote to diagnosis due to understaffing
- Inadequate time to devote to diagnosis due to high volume medical practice
- Jumping to a diagnosis prematurely without sufficient information
- Failing to take a thorough medical history
- Lab mistakes including mishandled samples, misinterpreted results and misreported results
But one of the most frequent causes of misdiagnoses involves a lack of communication between the doctor and patient. Sometimes the fault lies in the patient as a doctor cannot respond to concerns and symptoms if the patient does not express them. Many times however, the patient has every intention of discussing their medical concerns, yet the doctor does not seem to have the time or interest to hear them. Here are some of the best ways to ensure that there is proper line of communication between you and the doctor and to decrease the possibility of misdiagnosis:
- Make your full story known – When you go to the doctor and you are not feeling well, you undoubtedly have concerns and symptoms that you would like to tell the doctor about. You deserve to have your entire story heard so that the doctor can make a proper diagnosis. But if the doctor interrupts you or seems to be in a hurry, your chances for misdiagnosis increase. There is a quote that says: "we have two ears and one mouth so that we can listen twice as much as we speak." If your doctor will not allow you to fully explain your condition, it may be time to find another doctor or to get a second opinion.
- Ask probing questions – After your doctor explains his diagnosis, ask him or her additional questions such as whether there are other illnesses or diseases that may be the true cause. Ask anything that you feel is relevant, such as whether you may have more than one thing wrong with you.
- Make sure you're a good fit – You want a doctor that is knowledgeable and experienced to make an accurate diagnosis, but of equal importance, you want a doctor that seems to take a real interest in your health and well-being. No one wants a hurried, uninterested robot for a doctor. If your doctor does not seems like he has your best interests at heart, or that he has better things to do, then you may be better off looking elsewhere.
- Double-check your test results – It is a good idea to double check your test results just to be sure. Usually, your doctor will make available to you the written blood test results as well as other test results. Even if the doctor says everything looks fine, it is a good idea just to read them yourself. But especially if a result comes back as shocking, extreme or if the result leads your doctor to diagnose your condition as requiring immediate treatment or medication, it is highly advised that you read the reports yourself before proceeding. About 5% of all test results involve a faulty or incorrect result. You may want to ask the doctor to re-test you before proceeding. There have been many cases of people diagnosed with breast cancer or other cancers that underwent painful treatment, chemotherapy, radiation or surgery, only to later learn that the testing was flawed and they did not in fact have cancer.
- Trust your instincts – Many people are reluctant to ask probing questions of their doctors because they feel intimidated. Don't. Nothing is more important than your health and well-being. So ask. And if you believe that your doctor's diagnosis is wrong and you are not feeling better, then either schedule another appointment, go to an emergency room or seek a second opinion. Do not wait.
Successfully Proving a Misdiagnosis Malpractice Claim
If a doctor has wrongly diagnosed a case, diagnosed it too late or not diagnosed it at all, this is commonly referred to as a misdiagnosis or negligent diagnosis medical malpractice case. But it is not enough to show that a misdiagnosis was made to file and win a lawsuit for the injury or death that may have resulted. The requirements to prove such a med cal case include:
The Existence of a Doctor-Patient Relationship and "Duty of Care"
Not every contact between a doctor and another person requires the doctor to properly care for the other person (called the duty of care). Sometimes a person will just ask a friend or acquaintance who happens to be a doctor for some medical advice without payment or any formal relationship. It is up to a judge to determine if the contact between the doctor and the sick person amount to a doctor-patient relationship that required the doctor to properly treat and diagnose the other person.
The Doctor's Misdiagnosis Breached the "Standard of Care"
The malpractice lawyer must first establish and prove what the "standard of care" is in that particular community for other reasonably competent doctors or specialists. What would another such doctor have done under similar circumstances? That is what is called the standard of care. This standard may be different in different communities. Doctors may be held to a higher standard in Chicago than they might be in a smaller town such as Galena, Morris or Greenville.
Once the attorney has established what this standard is, then he or she must convince a judge or insurance company that the doctor did not meet (breached) this standard of care. The patient and his or her medical malpractice attorney have the burden of proof to show this is true.
In order to file a misdiagnosis lawsuit and also in order to prove the case at trial, this normally must be done with the help of expert testimony. That involves the hiring of a medical expert, whether it is a doctor, nurse, x-ray technician or cancer treatment specialist. That expert must examine the medical records and provide an expert opinion about what another reasonable doctor would have done under those same circumstances, and whether this particular doctor failed to meet that standard. Some of the reasons that a doctor might fail to meet the standard of care include:
- Failing to include a relevant medical problem on the initial differential diagnosis list
- Nurse or other medical assistant failing to provide the proper diagnostic medication, leading the doctor to misinterpret results and misdiagnose (nurse would then also be a defendant in such a lawsuit)
- Failing to recognize the urgency of the medical problem, such as cancer, delaying the diagnosis and causing additional injury
- Improperly interpreting or conducting a diagnostic test
- Failing to perform a diagnostic test
- Failing to consult other specialists when necessary for a proper diagnosis
The Doctor's Misdiagnosis Caused Injury or Death
Lastly, if the medical malpractice attorney has been able to show the existence of the doctor-patient relationship, a duty of care, and a breach of that standard of care, there is still one more important hurdle in order to file a successful misdiagnosis lawsuit. That is the question of harm. If the misdiagnosis was caught quickly (such as the example earlier of a person whose brain cancer was misdiagnosed as a headache, but the error was corrected the next day), then there is no actual harm, just the potential for harm. After all, the emergency room did not cause the cancer. If on the other hand, the patient had relied on the emergency room doctor's misdiagnosis and not sought help for months afterwards, and the tumor had grown until it worsened, then harm would most certainly have occurred. Some examples of such harm include:
- The misdiagnosis increased the likelihood of death
- The misdiagnosis increased the likelihood of medical complications
- The misdiagnosis resulted in unnecessary, painful, disfiguring, or scarring procedures
- The misdiagnosis subjected the patient to treatment more aggressive than what would have otherwise been necessary if the disease or illness had been diagnosed earlier
- The misdiagnosis exposed the patient to unnecessary chemotherapy or radiation treatments
In addition to proving that harm occurred, it is equally important to prove that the harm was either the direct or proximate result of the negligent misdiagnosis. So even if the patient took a turn for the worse, the attorney must prove that this injury or death was the result in some way. This harm may take many forms such as the loss of earning capacity, pain and suffering, the cost of medical bills, the inability to care for one's self, or the inability to simply enjoy life's pleasures.
An Experienced Misdiagnosis Attorney Is Vital
For over 25 years, the successful and caring Chicago medical malpractice lawyers affiliated with Mitchell S. Sexner & Associates LLC have served the community in Chicago and across the state. Millions and millions of dollars have been recovered for our deserving clients and their families. But none of that has come without a struggle, as medical insurance companies are simply not in the business of paying fair settlements without a strong push by experienced legal representation on the other side. Our attorneys have the knowledge and experience to help you. Call today for a free no-obligation consultation about your rights under the law. No fees are ever charged unless we are successful on your behalf. Our 24 hour phone number is (800) 996-4824.