While estimates vary widely, industry experts indicate that more than 100,000 persons die each year because of mistakes made in hospitals. Several years ago, one hospital journal suggested the actual annual number is more than 400,000. That’s a lot of mistakes—mistakes that often have tragic consequences.
The term “medical malpractice” is commonly used to refer to those medical mistakes. The term is casually thrown about. It is featured prominently in such popular television shows as House, Grey’s Anatomy, and Nurse Jackie. Malpractice is discussed at cocktail parties and in beauty salons. Truth be told, there is a lot of misinformation in public circulation regarding the subject. So, what exactly is medical malpractice? And what sort of diagnostic errors can lead to medical malpractice claims?
Medical Malpractice Defined
Medical malpractice is generally defined as an act or omission by a physician or other health care provider that deviates from the standard of care that is generally recognized within the medical community and which causes injury to the patient. Put in slightly different terms, medical malpractice occurs when the physician’s (or other medical expert’s) treatment departs from that of a “reasonably prudent medical provider.”
However, a bad medical outcome does not necessarily mean someone is legally responsible for malpractice. Medicine is not an exact science, including diagnostic practices.
While an exhaustive discussion of all sorts of diagnostic errors is beyond the scope of this article, three types of diagnostic errors dominate the claims:
Type 1: Misdiagnosis
Sometimes referred to as “making the wrong diagnosis,” this form of malpractice generally occurs when the patient presents himself or herself to the expert for treatment, various questions are asked, tests may be performed and, based upon the medical information on hand, the physician makes an incorrect diagnosis. The physician indicates the patient has a muscle strain when, in fact, he or she is suffering from appendicitis.
Among the most common conditions that are misdiagnosed are:
Misdiagnoses come about for a host of reasons, including:
Concerning treatment protocols: according to the Centers for Disease Control and Prevention, 90 percent of those who contract Rocky Mountain spotted fever (“RMSF”) have some sort of rash during the course of the illness. RMSF fatalities are generally concentrated in the 10 percent who have no rash. Why? Because some physicians inflexibly follow the RMSF protocols, excluding the disease from the diagnosis because this one, classic symptom is not present.
Type 2: Missed Diagnosis
Almost a synonym for the first category, missed diagnosis occurs when the physician examines the patient and gives the patient what amounts to a clean bill of health when, in fact, the patient has an severe illness or other condition. As with misdiagnoses, the fault can sometimes be traced to incomplete or untruthful medical histories provided by patients. For example, physicians often fail to diagnose substance abuse in psychiatric patients, usually because the patients are not truthful. Critical congenital heart disease in infants is very difficult to diagnose. In fact, some 30 infants die each year due to this missed diagnosis.
Type 3: Delayed Diagnosis
This occurs when the physician eventually makes the correct diagnosis, but only after there has been a significant delay. Late diagnosis is one of the more common types of diagnosis error. In fact, according to one report from NBC News, a majority of Americans will get a wrong or late diagnosis at some point in their lives.
Delayed diagnoses are particularly problematic because many conditions can be treated, if caught early enough. With some conditions, a delay in diagnosis may mean the condition cannot be treated at all. Delays are relatively common in diagnosing a number of common conditions, such as lung cancer, but are also prevalent in more exotic diseases and conditions:
The practice of medicine is both science and art. That is to say, the physician must rely not only upon the empirical data generated from blood tests, urinalysis, x-rays, mammograms, and the like. The physician must apply her experience and judgment to the complex human body and come to an understanding of what is, or is not, wrong with the patient. As noted above, the law does not treat physicians as guarantors of good medical outcomes. Sometimes there are no happy endings.
Nevertheless, the law does require physicians to adhere to standards of care that are generally recognized within the medical community. Where a physician fails to live up to that standard, he or she should be held responsible for the damage caused.
Because the law of medical malpractice is complicated, anyone who feels that he or she – or a loved one – has been victimized by misdiagnosis, a missed diagnosis, or a delayed diagnosis should seek the counsel of an experienced, competent malpractice attorney.
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