Tuesday, July 8, 2014

Does A Misdiagnosis Mean That You Have A Viable Ohio Medical Malpractice Case?

Not necessarily.  First, let’s start with some basics.  A misdiagnosis MAY mean that a doctor was negligent.

Example:  You are involved in a single car crash.  You’re transported to the local ER, where an ER doctor performs a physical examination, and notes severe tenderness of your cervical spine.  An x-ray of your cervical spine is ordered and read by a radiologist, who reports that there are no fractures.  Her diagnosis is a “cervical sprain.”

You are released from the ER, but your pain is getting worse.  In fact, it’s to the point that you can barely move your neck.  You see a local orthopaedic surgeon two weeks later, who takes another x-ray, and, minutes later bursts into the room and says:

“You need to go to the hospital immediately.  You have a broken neck!”

The orthopaedic surgeon eventually reviews the original ER x-rays and confirms that the fracture was indeed present on the original x-ray.  It was there all along.  The radiologist misread the x-ray. 


Just as a stool has three legs, you need to prove 3 things in any medical negligence claim: (1) negligence that (2) directly caused (3) losses and harms, known as "damages." Unless you have all three, no winnable case. 

 Was the radiologist negligent in misreading the x-ray?  Yes. The 1st leg of the stool is secure. Does this mean you have a viable medical malpractice case for the misdiagnosis of your broken neck? It depends.  Let’s add to the fact pattern.  Assume that in the two week period between your discharge from the ER and the discovery of your broken neck, the fracture has become “displaced.”  Definition:  the fracture has shifted or moved from its original position, which is now potentially life-threatening because it may occlude or pinch the spinal cord.

Why did your neck fracture move or become displaced?  Because of the lack of a hard neck collar that should have been secured to your neck in the ER, which, at a minimum, is required to immobilize a broken neck.

Because your fracture is now slipped/moved/ displaced, there is only 1 option:  surgery to repair the fracture, followed by one of the most dreaded post-operative devices known to patients:  the “halo brace.”  This medieval  torture device is screwed into your head for weeks after surgery to make sure the fracture maintains proper alignment, which promotes proper healing.

The negligence and delay in properly diagnosing the neck fracture directly caused your broken neck  to deteriorate. The 2nd leg of the stool---direct causation or cause and effect--is met. The harms and losses directly caused by the negligence and delay--the surgery, halo brace, and other assorted miseries---secure the 3rd leg of the stool--damages.

Now, let’s change things a bit.and assume the same misdiagnosis and two week delay in diagnosing your neck fracture, but with a critical difference.  Instead of ordering you to the hospital, your orthopaedic doctor tells you:

“I have bad news and good news.  The bad news is that your neck is broken. The good news is that the fracture is still intact, and you can be fixed with wearing a hard neck collar.  We don’t have to operate.”

Is the first leg of the stool still present?  Of course – you were negligently discharged from the ER with a broken neck!

However, the two week delay in diagnosing your broken neck did not make a difference in your outcome, nor did it make matters worse.  Had they diagnosed your neck fracture in the ER and placed a hard neck collar on your neck, you’d still be in the same boat from a healing standpoint because the nature of the fracture did not change.

This is a classic case of negligence without the 2nd leg of the stool:  direct causation between the misdiagnosis/two week delay and your ultimate outcome.

Does it mean the radiologist gets a free pass for misreading your x-ray in the ER? Probably.  Fair?  Not really, but that’s Ohio law.

These two alternating scenarios prove the point that each medical malpractice claim is unique, and does not usually lend itself to easy, black and white answers.

Here's the takeaway: with  few notable exceptions (like cutting off the wrong leg or leaving a large towel inside a body cavity after surgery), any “medical malpractice attorney” who can tell you after a 10 minute phone conversation that you have “a good case” is probably smoking something. Think about that if you're scouring the Yellow Pages or The Internet for "aggressive" or "experienced" medical malpractice attorneys... 

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