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New Ways to Sue Physicians

April 9, 2012

Medscape recently published an article that every physician should read regarding new theories of liability attorneys are using against physicians. Worth a read, but you have to be a Medscape member to access it. For those who aren’t Medscape members, the highlights of the article are below.

Loss of Chance
Traditionally, this has been a theory used against physicians when cancer is initially misdiagnosed. Ordinarily the argument to counter a lawsuit for misdiagnosis of cancer is that either the physician hasn’t caused any injury (i.e. the cancer is already there, the physician didn’t do anything to cause the cancer, and the patient would still need chemotherapy and other treatment regardless of whether the cancer was diagnosed sooner or later) or that the patient hasn’t been damaged (i.e. the patient is still alive and may live a full life or alternatively that the patient would have died from the cancer regardless of when it was diagnosed).
In response to those arguments, case law has recognized a theory called “loss of chance,” meaning that the delay in diagnosis caused the patient to lose a chance at living or at not requiring surgery or whatever other treatment is necessary. For example, if the expected survival rate for early breast cancer was 80% and the delay in diagnosis resulted in metastasis where the survival rate is only 10%, the physician could be held liable for that 70% reduction in survivability. In general, the loss of chance doctrine applies only to patients who have a 50% or greater chance of improvement/survival. A patient who has a 30% chance at survival from a disease has no case if a delay in diagnosis causes those chances to decrease to 10%.
A good example where this case could apply is thrombolytic treatment of acute strokes in the emergency department. Current literature does not show that patients have greater than a 50% chance of improving after receiving thrombolytics and, in fact, a substantial minority of patients get worse from treatment. Because of the 50% rule, a loss of chance argument would likely not withstand legal challenges. Any expert testifying that chances of improvement due to thrombolytics are greater than 50% is lying and should be sanctioned.
The winds may be shifting, though. The Medscape article notes that several states, including Wyoming, Delaware, and Massachusetts, where the 50% rule is no longer applicable. Any loss of chance in those states can be potentially actionable. Doctors practicing in those states should be aware that any delay in diagnosis may be grounds for liability.

Speculative Future Damages
The article also notes the possibility of liability for alleged damages that may occur in the future. An example might be a patient who is stuck with a needle contaminated with HIV blood. Even though the patient probably won’t contract HIV, the patient may seroconvert. Therefore, a lawsuit after a needle stick may seek damages for the potential injuries and for testing to determine whether those injuries ever materialize. While some states have rejected this notion, the article notes that Ohio, Massachusetts, and West Virginia allow such cases to proceed.

Civil Rights Violations
The article cites one case of a deaf woman who alleged that her civil rights were violated because there was no sign language interpreter to advise her of her options regarding an epidural for childbirth. Ultimately, the woman’s case was dismissed.
However, note that any type of discrimination can lead to civil rights violations. In addition, restraining patients or providing treatment against a patient’s will can also lead to civil rights claims.
Civil rights claims are attractive to plaintiffs because they do not require expert testimony and because a successful claim can result in attorneys fees being awarded to the plaintiff. A civil rights claim also may not be covered by a physician’s medical malpractice insurance.

The article notes that all of these theories of liability are uncommon but are still a cause for concern.

Good to know about.





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