The Legal Implications of Missed Diagnosis

06th July 2010
By Moshe Sharon in Medical Malpractice
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Missed diagnosis leads to either no treatment or the wrong treatment for medical problems, which can have catastrophic results resulting from treatable conditions. We have no clue as to how widespread the problem is, but we do know that it is a common difficulty attributable to a large percentage of all medical malpractice lawsuits. When damage occurs from a missed or wrong diagnosis, there are certain criteria that determine whether or not the doctor is liable for his or her mistake such as the personal and family medical history, review of systems, objective and subjective symptoms, what tests the doctor ordered, the follow-up for interpretation, patient teaching and action taken when the patient returns and complains that the treatment is not helping.

First, I have heard medical professors on many occasions tell their students that about half of all diagnoses can be arrived at by history alone. Although they were emphasizing the importance of taking a proper history, this was a double edged sword, because too much reliance on history can also lead to a wrong conclusion. In any event, the failure to take a proper history is tantamount to gross negligence because it is simple task to elicit relevant information.

Second, the review of systems is also a simple task accomplished during the interview. The doctor or nurse asks questions pertaining to all bodily functions to find out if there are any specific complaints that the patient did not think was relevant to the chief complaint.

Third, the observable symptoms and subjective complaints have to have a reasonable connection to the diagnosis. For example, if there is a high fever of unknown origin, the doctor has to conclude that there is an infection somewhere. Further diagnostic action would require locating the source of the infection beginning with a complete review of systems. Based on the patient's answers, the physician would have to then focus on the problematic area in ordering tests.

Fourth, not ordering the proper tests is probably the most common root cause of the failure to diagnose cancer and other devastating diseases in a timely manner. This type of negligence is especially unconscionable in the face of persisting symptoms that are not responding to treatment.

Fifth, the failure to follow-up to obtain test results should be classified as a crime because the information is available and the doctor didn't bother to look for it. I can recall a personal experience of having to call my mother's doctor to find out that she was anemic and needed a blood transfusion several days after the office assistant drew blood for a complete blood count (CBC). My question was, "When were you planning to tell me?" Needless to say I changed doctors in a big hurry.

Sixth, the doctor has to inform the patient that the diagnosis is not an exact science and that the doctor, patient and family have to work together to carefully watch the response to treatment. There has to be a return scheduled for a follow-up visit and the doctor must tell the patient where to go in case the condition deteriorates.

In conclusion, for any doctor who makes a wrong diagnosis in good faith after providing a proper history taking, review of systems, a reasonable assessment of symptoms, ordering appropriate tests, and diligent follow-up with patient teaching there is no liability. Thus one has to find out what's missing. The most important consideration is whether the doctor remembered why the patient came in for help in resolving an existing health problem. Additionally, in the case of primary care physicians working for an HMO who become financially penalized for too many specialty referrals, one must scrutinize whether such a referral was warranted; and If it was and withheld, then the PCP should be liable for denying access to competent medical care.

Thomas A. Sharon, R.N., M.P.H. is a published author, lecturer and internationally known expert in the prevention of medical errors. He has worked for two decades as a consultant to attorneys in cases where hospitals have been accused of preventable errors.

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About the Author
Occupation: Author
Moshe Sharon has been a registered nurse for 31 years with a graduate degree and specialty in public health. He has spent most his career in search of ways to achieve true healing for those who are not yet well. He has studied and practiced holistic health care for two decades, always believing in the inseparability of the mind, body and spirit.
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