Medical Malpractice Bulletin – July, 2014

In this issue:

Perspective: Is a “draft” report the “final” report? Canadians say “Yes.”
When an expert is asked to write a report for an attorney, may the attorney and the expert discuss and modify the initial report before it becomes final? That is the question being debated in Canada, where attorneys may not discuss such reports with their experts. A group of (apparently) plaintiff attorneys seeks to change that. A group of (apparently) defense attorneys says no. Assuming that all parties are honest and objective, what would be wrong with such a change? To read more, click here ->

Jumping to conclusions: Little time spent in differential diagnosis
A recent study in Annals of Emergency Medicine reveals that the average emergency physician generates a differential of 5 diagnostic possibilities for a complex emergency patient. 77% of these were developed in less than 5 minutes of the first encounter with the patient, and of those 1/3 were generated before even meeting the patient. The authors conclude that the generation and rank ordering of differential diagnoses is closely linked to past experience. Limited experience – or bias generated by one’s experience – may thus explain a large number of diagnostic errors based on reasoning errors.

Vertebral Artery Dissection May Initially Cause No Noticeable Symptoms
A recent article in the NY Times on VAD referenced an interesting 2012 meta-analysis by Dr. Rebecca Gottesman et al. indicating that a high index of suspicion is necessary for all patients with any of the 3 most common presenting symptoms of VAD: dizziness/vertigo (58%), headache (51%), and neck pain (46%). While a patient with a “classic” presentation of VAD will have all 3 symptoms, the absence of 1 or even 2 of these symptoms does not rule out the diagnosis. Looked at a better way, 42% of VAD patients did NOT have vertigo, 49% did NOT have headache, and 54% did NOT have neck pain. Further, the disease presents in a younger population, with a mean age of 46.5 years, some 20 years younger than the average stroke patient. Dr. Gottesman concludes that “our study strongly suggests that VAD should be considered in the differential diagnosis in patients with these common symptoms, even in the absence of more obvious (eg, hemiparesis) or specific manifestations (eg, cranial nerve palsies). This is particularly important for younger patients where the [symptoms] might otherwise be mistaken for a benign diagnosis such as vestibular migraine.” An MRI is indicated for patients with all 3 symptoms, but should be considered if a more benign diagnosis cannot be made in the absence of 1 or 2 of those symptoms. Treatment options vary and depend on the timing of the diagnosis.

The other side of the stethoscope: Injured ED doc finds treatment lacking
Dr. Charlotte Yeh, one of the early leaders of the American College of Emergency Physicians, found herself on the other side of the stethoscope following a serious car-pedestrian accident in Washington, DC. She found that the care she received was so lacking that she actually described it in and essay in the journal “Health Affairs.” It was later excerpted and reprinted in the Health & Science section of the Washington Post. On reading of her experience, one must share her gratitude in coming through the event relatively intact, despite  all the shortcomings of her care. A fascinating read.

Malpractice claim may be modified after medical panel decision
The Montana Supreme Court recently ruled that a malpractice claim reviewed, as required, but the Montana Medical Legal Panel, may be modified in a subsequent lawsuit following that Panel’s review of the information presented. The case involved an intestinal perforation following an ERCP. The lawsuit included an expert’s conclusion that the ERCP was, in fact, unnecessary, a claim that was not included in the Panel’s review. The Court ruled that the plaintiff provided the Panel sufficient information to justify the filing of the lawsuit, and that “filing a claim with the MMLP is simply a condition precedent to filing a medical malpractice action in district court.” The Court reasoned that “a claimant before the MMLP is required to provide only ‘reasonable detail’ of the elements of her claim,” and that the purpose of the Panel is just a “first step… to avoid litigation where possible” and occurs before discovery, experts, and development of all legal theories in a case.

Must I consent to everything? Washington State Supreme Court says “No”
When a physician misdiagnoses a patient, can a plaintiff sue for lack of informed consent? The Supreme Court of Washington State says “No.” Once the misdiagnosis occurs, the Court ruled that the patient is only allowed to sue for medical negligence. The WSMA and Physicians Insurance, the primary insurer of physicians in the State, claimed that any other ruling would have “required physicians to discuss the pros and cons of all relevant treatment options related to [all abnormal tests] or risk a claim for failure to provide informed consent.”

“Every client I see has already had a bad medical outcome. The last thing they need from me is a bad legal outcome.”
     WN, Plaintiff Attorney


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