"Spike" in Suits for These Missed, Delayed Diagnoses

Don't give plaintiffs' attorneys an "in"

To have a successful lawsuit in cases of missed or delayed diagnosis, a plaintiff needs at least two things, according to Michael Blaivas, MD, professor of emergency medicine in the Department of Emergency Medicine at Northside Hospital Forsyth in Cumming, GA.

"The patient must feel they have cause to claim injury, and an attorney has to be interested in taking a case," says Blaivas. "There are two types of cases that I am mostly seeing."

There are "small, nuisance cases," says Blaivas, where the patient suffered little injury, such as delayed diagnosis of a small foreign body that required some antibiotics, possibly minor surgery, and resulted in no long-term deficits. "The insurance company may pay out a bit with no fight," says Blaivas.

The other type of case that Blaivas sees increasing involves a significant bad outcome with severe injury or death. "Most of these are due to incorrect reading of high-end imaging, or not using the high-end imaging," says Blaivas. "Testicular torsion is quite a common suit, and I see lots of them."

While there are more claims that an ultrasound should have been done and was not done, adds Blaivas, the number of claims where the ultrasound was done or read improperly does not seem to be changing.

Diagnostic Tests Are Issue

The other trend for increasing litigation is any devastating event not diagnosed during a visit that might have been caught on an imaging study, says Blaivas, whether it was indicated or not. "One area with a big spike in litigation has been CVA (cerebrovascular accident) detection, especially for those cases of subtle or confusing presentation," he says. "Strokes later found on CT or MRI (magnetic resonance imaging) are being picked up as cases by lawyers."

All lawsuits include something an expert can point to as an apparent egregious error, says Blaivas, typically omitting a CT of the chest or abdomen, or occasionally omitting MRI in spinal injury cases.

"The jury pools know about these tests, and feel they can be performed endlessly and with little recourse," says Blaivas. "Thus, when an expert says he or she would have ordered a CT of the abdomen for sure, and the appendicitis would have been found for sure, the jury may buy it." The same is true for thoracic dissection and pulmonary embolism (PE), he adds.

"Obviously, for big awards, there has to be some significant damage," says Blaivas. "Death may seem like the best from the plaintiff's perspective, as far as impressing the jury, but, in reality, long-term disability of a young patient may bring in the largest amounts."

Anything to do with pediatric patients will typically be looked at more closely for litigation potential, says Blaivas. "I have repeatedly seen cases where everything was done correctly and the child expired and suits are successful," he says. "Many insurers and physicians are so scared about juries blaming someone for the child's death that they settle."

Blaivas says that "the very things we try to teach the public will be coming back to haunt us. CVA not diagnosed right away, and [myocardial infarctions] not caught right away and taken to the cath lab, will be in the cross-hairs more than ever."

There is greater awareness by the lay public about high-end testing such as CT and MRI, says Blaivas, with many presenting with minor complaints and requesting CTs. "They often mention having heard of someone who did not get one and something was missed," he says. "This means people are looking for the test, and potentially for the mistakes."

One of the first questions Blaivas is often asked by attorneys is, "Would a CT have caught this?" Pulmonary embolism and thoracic dissection are becoming more and more frequent as cases, he adds.

"Plaintiff's attorneys are exploring a possible 'in' for failure to meet the standard of care," says Blaivas. "Sometimes, the only thing stopping them is that the outcome may not have been altered in many people who had a massive PE or dissection and expired in the ED."


For more information, contact:

• Michael Blaivas, MD, Vice President, Emergency Ultrasound Consultants, Bear, DE. Phone: (302) 832-9054. Fax: (302) 832-0809. E-mail: mike@blaivas.org.