Do I Have A Case?

To have a meritorious malpractice case, you must prove that one or more health care providers failed to act in accordance with accepted medical practices; that the patient suffered a significant and permanent injury (or death); and that the malpractice was a direct and substantial cause of the injury or death. While it is technically possible to have a meritorious malpractice claim when the malpractice resulted in minor or non-permanent injuries, it has been our experience that such claims are usually rejected by jurors.

To determine whether or not you have a meritorious case, it is necessary to conduct and extensive review of your medical history.

The review process begins with a detailed interview of the client. When the facts suggest that the above criteria may be met, all relevant medical records must be obtained. This is accomplished by having the client sign HIPAA-compliant medical authorizations releasing all medical records to our lawyers. Once all of the patient’s records are received, a thorough in-house review of the records is conducted. Once our initial review is completed, our attorneys consult medical textbooks and literature to determine what the appropriate standard of care was at the time the injury occurred. This allows us to determine the specialties of the medical experts who must be consulted and the specific issues that must be addressed. We then select and retain the best and most appropriate independent experts available to review your file and to provide us with an objective assessment of whether or not you have a meritorious case. Only then can we tell you whether or not you have a case. Our office pays all of the fees for obtaining your medical records and all of the costs for retaining the medical experts necessary to review your file.

We never charge a fee for determining whether or not you have a case.

Once we have determined whether or not you have a meritorious case, we tell you everything that we have learned. It is then up to you to decide whether you wish to pursue your legal remedies.

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Types of Medical Malpractice Cases

There is an almost limitless variety of types of medical malpractice cases. The following is a list by specialty of medical-malpractice allegations that we most commonly see in our practice:

• Anesthesiology: failure to monitor, failure to complete patient assessment, improper intubation/positioning
• Cardiology: diagnosis of myocardial infarction, complications from catheterization, medication management of anticoagulants
• Dermatology: failure to diagnose skin cancer, improper treatment of psoriasis, improper treatment of acne
• Emergency medicine: failure to diagnose myocardial infarction, failure to diagnose spinal fractures, failure to diagnose appendicitis
• Family practice: obstetrics, failure to diagnose breast cancer, failure to diagnose myocardial infarction
• Gastroenterology: failure to diagnose abdominal cancer, failure to diagnose appendicitis, failure to diagnose esophageal stricture
• General surgery: surgical complications of gall bladder surgery, hernia surgery, and breast surgery
• Internal medicine: failure to diagnose breast cancer, failure to diagnose bronchus/lung cancer, failure to diagnose myocardial infarction
• Neurology: failure to diagnose herniated disc, improper treatment of seizure disorder, failure to treat risk of stroke
• Obstetrics: improper reading of fetal monitor strip, failure to do a timely c-section, failure to diagnose breast cancer
• Ophthalmology: cataract surgery, treatment of retinal detachments, diagnosis and treatment of glaucoma
• Orthopedics: surgical complications of intervertebral disc, surgery/treatment of femur fractures, carpal tunnel syndrome
• Otolaryngology: treatment/surgery of sinusitis, treatment of upper respiratory diseases, treatment of deviated nasal septa
• Pediatrics: treatment/resuscitation issues of newborns, diagnosis/treatment of infectious disease, medication errors for chronic problems
• Plastic surgery: reduction mammoplasty, augmentation mammoplasty, rhytidectomy
• Psychiatry: failure to properly treat depression, improper treatment of personality disorder, sexual contact
• Radiology: diagnosis of breast cancer, diagnosis of lung cancer, complications from invasive procedures
• Urology: treatment of renal calculi, prostate surgery, renal disorders

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FAILURE TO TIMELY DIAGNOSE CANCER

Failure to timely diagnose cancer represents the largest proportion of cases about which malpractice lawyers are consulted.

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Failure to Diagnose Breast Cancer

According to the Physicians Insurers Association of America (PIAA), delay in diagnosis of breast cancer is the most common reason for which physicians are sued for malpractice.

The typical fact pattern involves a relatively young woman who presents with a lump in her breast; the subsequent mammogram is normal; the physician assumes that the lump is benign and advises the patient to return in a year.

The current generally accepted standard of care for new breast lumps is that the health care provider can ask the patient to watch it for no more than 3 menstrual cycles. If the lump is still there, the doctor should do a mammogram. Even if the mammogram is negative, the lump should be biopsied.

In part because most of the women bringing litigation against physicians for delay in diagnosis of breast cancer have undergone mammography, the most commonly named defendant in such lawsuits is the radiologist. The most common allegations concerning malpractice on the part of the radiologist fall into one of the following three categories:

    1.  The failure to detect a lesion on the mammographic study;

    2.  Insufficiently evaluating a lesion that has been detected, resulting in an unreasonable interpretation;

    3.  Failing to sufficiently communicate findings concerning a lesion that has been detected and properly interpreted.

In a PIAA-American College of Radiology (ACR) study of screening mammography claims for negligence, 13% of the cases involved issues in image quality. An error in diagnosis, presumably including nondetection and incorrect assessment of detected abnormalities, occurred in 64% of cases. It was noted that half of these errors occurred because additional views were not recommended for more definitive evaluation.

The U.S. Preventive Services Task Force (USPSTF) recommends screening mammography, with or without clinical breast examination (CBE), every 1-2 years for women ages 40 and older.

(For more detailed information on USPSTF ratings visit: http://www.ahrq.gov/clinic/ajpmsuppl/harris3.htm#codes)

The USPSTF found fair evidence that mammography screening every 12-33 months significantly reduces mortality from breast cancer. Evidence is strongest for women ages 50-69, the age group generally included in screening trials. For women ages 40-49, the evidence that screening mammography reduces mortality from breast cancer is weaker, and the absolute benefit of mammography is smaller than it is for older women.

The New York State Department of Health website has a great deal of geographical information concerning incidence of breast cancer in New York State:

http://www.health.state.ny.us/nysdoh/cancer/csii/nyscsii.htm

“Cure” rates for breast cancer that is diagnosed in an early stage are approximately 94%.

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Failure to Diagnose Colorectal Cancer

Failure to diagnose colorectal cancer is the next most common malpractice claim

The typical fact pattern involves a patient who presents with rectal bleeding; the health care provider, instead of having a colonoscopy or barium enema performed to definitively determine the cause of the bleeding, assumes that the cause of the bleeding is hemorrhoids and sends the patient home.

“Cure” rates for colon cancer that is diagnosed in an early stage are approximately 91%.

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Failure to Diagnose Lung Cancer

A claim for failure to timely diagnose cancer of the lung may be brought against:

1. a radiologist for failing to properly read the x-ray or CT scans or the failure of the primary care physician to order such tests; or
2. a pathologist for failing to properly interpret the results of a biopsy

“Cure” rates for lung cancer that is diagnosed in an early stage are approximately 47%.

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Failure to Diagnose Prostate Cancer

A claim for failure to timely diagnose prostate cancer is often against the urologist or primary care physician for failing to read the results of a PSA test and/or notify the patient of the results, and their significance, in a timely manner.

In all of these cases, the critical issue is “timeliness.”  That is, had the cancer been diagnosed a certain number of months or years earlier, would the patient’s outcome have been significantly better?

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Emergency Department Malpractice

Claims against hospital emergency departments frequently involve:

1. Failure to diagnose a heart attack in a patient who presents with chest pain;
2. Failure to diagnose a cerebral aneurysm in a patient who presents with “the worst headache of my life;”
3. Failure to properly treat a patient with ischemic stroke:
   1. The standard of care (guideline), as of 01/03/03, is:
      1. Patients presenting within 3 hours of stroke onset should be evaluated by a physician within 10 minutes and receive a CT scan within 25 minutes of arrival in the Emergency Department;
      2. Intravenous tissue plasmic activator (tPA) should be administered within 3 hours of stroke onset and less than 60 minutes of arrival at the Emergency Department;
      3. Patients presenting with stroke onset who are not candidates for intravenous tPA should promptly be given aspirin;
      4. Education regarding early stroke symptoms, diagnostic procedures and treatment options should be offered to the patient and family. This should be documented in the patient’s chart;
   2. Prevention of complications for medical management within the initial 24 - 48 hours of diagnosis and treatment of ischemic stroke include:
      1. continue to treat hyperthermia or hyperglycemia;
      2. continue IV fluids;
      3. initiate deep vein thrombosis prophylaxis;
      4. perform swallow evaluation;
      5. initiate early rehabilitation

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