Plaintiff attorneys do not always need to prove that an EP’s negligence directly caused a patient’s bad outcome. Instead, they allege only that the plaintiff was deprived of the possibility of a better outcome. Often, these “loss of chance” claims involve missed or delayed diagnosis of stroke.
“Missed stroke cases often involve intoxicated patients, patients on a new medication, or patients with an atypical presentation,” says John C. West, JD, MHA, DFASHRM, CPHRM, principal at West Consulting Services, a Signal Mountain, TN-based risk management and patient safety consulting firm. “The most common issue is a failure to diagnose the stroke at a time when something can be done to correct it,” West says.
When this allegation is made, plaintiff attorneys do not always specifically claim that better ED care would have prevented the stroke. “In these cases, the claim is often one for loss of chance of a better outcome,” West explains.
In one recent loss-of-chance claim in Mississippi, a patient’s wife told nurses she thought her husband had suffered a stroke. For whatever reason, physicians did not find out about it until six hours later, which was too late to administer tPA.1 The case occurred on an inpatient floor.
“But it would be equally applicable to the ED if the stroke patient is discharged, or the screening takes too long, and the window of opportunity closes,” West notes.
Under the loss-of-chance doctrine, the plaintiff attorney must prove through expert testimony that the chance of a better outcome was over the percentage required by state law. In the Mississippi, this percentage was more than 50%, and the plaintiff failed to prove it.
There is no scientific test to measure the loss of chance. “It is entirely up to the experts. The one who is most credible is the one who wins,” West reports. Experts rarely agree on the exact percentage. “Sometimes, as in this case, the experts did not say that the chance of a better outcome was greater than 50%,” West says.
Undeterred, the plaintiff then argued that the “reduced likelihood” doctrine still applied. This allowed compensation for negligence, even if the chance of improvement fell below 50%. The court rejected the argument, and the case was dismissed. “Different states have different opinions on how loss of chance cases should go,” West explains.
Some states allow the case to go forward even if the plaintiff cannot show a greater than 50% chance of a better outcome, while others do not. “One way to defend these claims is to prove that the plaintiff waited too long to come in,” West says.
In delayed stroke diagnosis cases, knowing the specific time the symptoms started can help the defense. This documentation proves that by the time the patient came to the ED, it was already too late for treatment. “This shows that even if the diagnosis was made immediately, the golden window of opportunity had already closed,” West adds.
- Norman v. Anderson Regional Medical Center, No. 2017-CA-00153-SCT (Supreme Court of Mississippi, Jan. 24, 2019).