- Medical Malpractice
- Birth Injuries
- Estate Planning
- Real Estate
It would be reasonable to expect that victims of medical malpractice would be motivated by anger or a desire to seek revenge on the guilty. However, in my experience, anger is rarely the emotion that dominates my clients who are victims of medical malpractice. Almost without exception, the emotion that overwhelms my clients is guilt. The most common sentiment that is expressed to me is, “I am not the type to sue anyone, let alone a healthcare professional.”
When I talk about guilt, I refer to a negative emotion generated from a past event. In this context, the event was seeking medical care due to concern about illness or injury. Whether guilt is manifested as a fleeting stomach pang or a crippling roadblock to regaining a sense of peace and acceptance, this emotion will not change the past. Nothing can. As professionals, how can we seek to prevent delayed or missed diagnoses and protect patients and practitioners from the poisonous consequences of diagnostic error and the accompanying guilt? How can we improve patient safety in the process? As a former nurse practitioner, I had the privilege of serving people of diverse educational, ethnic, and social backgrounds. For the past 30 years, I have been a medical malpractice lawyer. I have defended healthcare professionals, and I have represented patients and families in catastrophic medical malpractice cases. The word catastrophic describes the impact on both patients and the practitioners who became defendants in a court of law. Whether my work was in a hospital or a courtroom, I embraced the unique challenges of each and I always appreciated the fact that without the patient, there was really no need for me. Your patients, some of whom may become my clients, are consumers of professional services. As consumers of healthcare, they seek to make informed choices about their health, which starts with getting an accurate diagnosis.
Formulating a Diagnosis
Let’s start with a key part of the diagnostic process: developing a differential diagnosis. It is a fundamental concept and skill that is taught in medical school and used daily by every medical practitioner who provides direct patient care. In its simplest form, the process consists of three steps: (1) collect information, (2) synthesize the information, and (3) make the diagnosis. The differential diagnosis process is dynamic because, as new information is acquired, the diagnosis may change. It is time-sensitive because it is critical to first rule in or out any potential diagnoses that could be life-threatening or life-altering.
Both the patient and the practitioner have mutually important, interdependent roles in the differential diagnosis process. The patient is responsible for seeking medical care, answering questions honestly, completing any diagnostic testing in a timely manner, and following up on test results. There was a time when it was almost solely the healthcare provider’s responsibility to follow up after testing. Those days are past. In today’s healthcare system, the patient’s mistaken belief that “no news is good news,” is dangerous.
The practitioner is responsible for collecting information. An important source of information is the patient history, a key determinant of the plan of care. A history is obtained by asking questions, listening to the patient, and asking appropriate follow-up questions. Information is also gathered from reviewing prior medical records, performing a physical exam, ordering indicated diagnostic tests, and analyzing the results. Communicating test results and proposing a plan of treatment is the responsibility of the practitioner.
Medical malpractice occurs when preventable error causes harm. If there is an error and no harm or if the delayed or missed diagnosis was not preventable, it is not medical malpractice. In medical malpractice cases, failing to listen to the patient or ask appropriate follow-up questions is often the beginning of a cascade of missteps that results in a delayed or missed diagnosis.
The shock of the fact that the delay of a correct diagnosis led to death or serious injury and was preventable sends the soul searching for answers. For many of the patients I’ve represented, their first thought pattern is predictable: “What did I do wrong?”
Patients often share that practitioners change their behavior toward the patient and family, once a diagnostic error is discovered. Healthcare providers scamper in and out of the hospital room and eye contact ceases. Patients and families develop feelings of fear, mistrust, and isolation. They hesitate to ask questions. Further, the questions they muster the courage to ask are left unanswered or the answers provided are evasive. Bewildered and confused, they do not know where to turn for answers. As a last resort, they call me.
Yet, the very act of calling a lawyer becomes another source of guilt. They never thought that one day they’d be sitting in the plaintiff’s chair.
From the practitioner’s point of view, the initial knowledge that a diagnosis has been delayed or missed may not be known for months or years. This phenomenon can occur because the correct diagnosis may have been made later by another practitioner or at a different healthcare institution.
Additionally, delayed and missed diagnoses historically have not been tracked or studied and no system is in place to provide feedback to the original practitioner. This issue was raised to national prominence with the National Academy of Medicine’s 2015 publication, “Improving Diagnosis in Health Care.”
In addition, I’ve had many practitioners tell me that the first time they learned they were allegedly responsible for a delayed or missed diagnosis was when they were served with the lawsuit. Although practitioners’ reactions vary, the emotion of guilt is quite common.
When patients come to me seeking representation, they most frequently request two things. First, they want to know why it happened, so they can do something to prevent it from happening again to someone else. I’m fairly confident that we can give our clients answers to the first question by reviewing the medical records, policies, and procedures and analyzing the system that failed both the patient and the practitioner. The second request, preventing someone else’s life from being forever altered by a similar preventable medical error, is more challenging. No one person alone can achieve that request. We must work together.
What can patients and practitioners do to prevent a delayed or missed diagnosis from occurring? It is critical for patients, as consumers, to understand that the performance of a differential diagnosis is a process. Discuss your diagnostic system with your patients and explain what their role is in the process. Teach patients that the process of formulating an accurate and timely diagnosis requires their participation and input. Seek to engage patients in the process.
Information available on the internet is not a threat to the practitioner, but instead, is an opportunity. Direct patients to reliable internet resources and encourage them to formulate questions. Incorporate the differential diagnosis process and reliable internet sites into discharge planning and the written documentation provided to patients.
Recognize that by welcoming and encouraging participation, you are empowering the patient. Embrace the fact that an empowered patient is your ally. How we address the human dimension of medical errors so that practitioners and patients find closure is imperative to patient safety. As a team, the practitioner and patient can avoid the inevitable guilt associated with diagnostic error and its aftermath, by working through the differential diagnosis process together to improve patient safety.