Misdiagnosis: The Most Common Form of Medical Malpractice

By Larry Bodine, Publisher of The National Trial Lawyers.

The next time you are at the doctor’s office, take a look around the crowded waiting room. According to a recent study in the journal BMJ Quality and Safety, at least 1 in 20 patients will be misdiagnosed by their doctor. Meanwhile, payouts for medical malpractice lawsuits hit a 10-year high, totaling more than $3.7 billion in 2013 with 33 percent of these cases being filed for allegations of misdiagnosis, making it the most common form of medical error.

Medical professionals have a duty to perform their job according to accepted standards of care. Harm caused to patients from medical negligence entitle patients to relief. In order to prevail in a medical malpractice lawsuit a patient must prove the existence of the following:

• Professional Relationship: medical professional and patient relationship obligating a standard of care.
• Negligence: an ordinary professional in these circumstances would have not made this mistake.
• Causation and Harm: the medical error caused harm that a proper diagnosis would have prevented.

Robert Wyble of New York recently won a jury award of $4.8 million against care providers for misdiagnosing him in 2005 with Myasthenia Gravis, a neuromuscular autoimmune disease that causes disability and death unless treated with aggressive and invasive procedures.

Wyble endured numerous complications and suffered emotional trauma related to his course of improper treatment until another doctor discovered the misdiagnosis in 2009. It turned out that Wyble actually had Cataplexy, a very treatable condition that an increase in his Ritalin prescription eventually corrected. Despite recovering physically, Wyble continued to languish in depression from the ordeal for three more years, which resulted in a divorce from his wife in 2011.

A Suffolk jury awarded Wyble $373,700 for past medical expenses, $2 million for pain, suffering and loss of enjoyment, and $1.5 million over the next 28 years for future pain, suffering, and loss of enjoyment. His wife was awarded $1 million for loss of service, society, and companionship.

In another case in Boston, the family of Jeffrey Kace also won a jury award of $4.8 million in their medical malpractice suit against St. Elizabeth’s Medical Center. Kace, who was 23 years old when misdiagnosed, visited the hospital complaining of cough, fever, and chest pains. After a five-minute examination, his doctor diagnosed him with bronchitis, prescribed antibiotics and painkillers, and sent him home to rest.

Kace never woke up. The cause of death was identified as myocarditis, a treatable virus that inflames and infects the heart muscle. Doctors usually administer an electrocardiogram when patients complain of such chest pains, and doing so in this case would have properly identified Kace’s condition. The jury found the doctor’s failure to administer the test a substantial contributing factor in his death.

Misdiagnosis can manifest in various ways. Some of the most common forms:

• Missed Diagnosis – the patient is declared healthy when they actually suffer from a disease.
• Incorrect Diagnosis – the doctor declares the wrong illness from the patient’s symptoms.
• Delayed Diagnosis – A significant and avoidable delay identifying the correct diagnosis.
• Failure to Recognize Complications – the doctor correctly diagnoses, but misses related complications that worsen the condition.
• Failure to Diagnose – the doctor identifies one disease but overlooks a related or unrelated one they should have diagnosed based on the condition.

While all of these situations fall under the general term of “misdiagnosis,” the differences in how they come about are significant. Doctors are under enormous pressure to see many patients each day, and the mistakes being made are often preventable. Unfortunately doctors are not relying on or employing procedures that would help curb misdiagnosis and, as a result, payouts in malpractice lawsuits are increasing.

Larry Bodine is a lawyer, journalist and marketer who speaks and writes frequently about law firm marketing. Currently he is the publisher of The National Trial Lawyers and is the former Editor in Chief of Lawyers.com. Readers can follow @Larrybodine on Twitter, on Google+ and on LinkedIn, where he moderates several law-related groups.