Failure to Diagnose

But this article isn't about how to argue with doctors; it's about how to better represent them or their patients in malpractice cases.

The Issue

So let's talk about the law. Consider this actual closing from a defense lawyer in a malpractice case: “Now every physician must use clinical judgment. You don't practice medicine by textbook. There's no guideline that you can go to. You don't have something on your Blackberry [that says] 'Well, there's this symptom and this symptom so we're gonna do this.' They have to make decisions. A physician cannot warrant care and they cannot guarantee outcomes because of the uniqueness of treating human beings. To require otherwise, to require physicians to be perfect, is an impossible burden and we ' the law ' recognize[] that we will not do that. When you look at [the doctor's] judgments, were they careless, were they unskilled?”

It's a compelling argument, meant to dovetail this “error in judgment” instruction from the trial court: “Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence.”

The verdict was for the defense ' but then the Pennsylvania Superior Court ordered a new trial over the “error in judgment” instruction, an order affirmed by the Pennsylvania Supreme Court in Passarello v. Grumbine, 87 A.3d 285 (Pa. 2014).

'Error in Judgment'

As recounted in Passarello , drawing from cases across the country, there are three prevailing views on the “error in judgment” instruction. First, some states prohibit error-in-judgment instructions entirely. Papke v. Harbert, 738 N.W.2d 510, 517 (S.D. 2007); Hirahara v. Tanaka, 959 P.2d 830, 834 (Haw. 1998); Rogers v. Meridian Park Hospital, 772 P.2d 929, 933 (Or. 1989); Bickham v. Grant, 861 So.2d 299, 303 (Miss. 2003); Yates v. Univ. of West Virginia Bd. of Trustees, 549 S.E.2d 681, 689-92 (W.Va. 2001); Rooney v. Medical Center Hosp. of Vermont, Inc., 649 A.2d 756, 760 (Vt. 1994); Jefferson Clinic, P.C. v. Roberson, 626 So.2d 1243, 1247 (Ala. 1993); Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa 1993); and Sleavin v. Greenwich Gynecology and Obstetrics, P.C., 505 A.2d 436, 440 (Conn.App. 1986).

Second, some states allow error-in-judgment instructions in certain circumstances, such as cases involving the “two schools of thought” theory. Das v. Thani, 795 A.2d 876, 881-82 (N.J. 2002); Francoeur v. Piper, 776 A.2d 1270, 1275 (N.H. 2001); Borja v. Phoenix General Hosp., Inc., 727 P.2d 355, 357-58 (Ariz. 1986); Kobos v. Everts, 768 P.2d 534, 537-38 (Wyo. 1989)).

Third, some states allow jurors to be instructed about error in judgment as long as the instruction does not contain additional loaded terms such as “good faith” or “bona fide.” Ward v. Glove , 206 S.W.3d 17, 41 (Tenn. 2006); DiFranco v. Klein, 657 A.2d 145, 148-49 (R.I.1995); Fraijo v. Hartland Hosp., 160 Cal.Rptr. 246 (Cal.App. 1979).

In addition to needing to know the prevailing view of the state in which you practice, there's another reason to spend time thinking about the error-in-judgment instruction: It helps the attorney to understand how to frame the concept of mistakes in malpractice law.

The Pennsylvania Medical Society submitted an amicus brief in favor of the error-in-judgment instruction; in the words of the Pennsylvania Supreme Court, the Society's argument was “based on the premise that the practice of medicine is oftentimes an 'art' requiring a physician to make a series of decisions based on symptomology.” The court was unimpressed. Like other courts rejecting the error-in-judgment charge, it held that such an instruction wrongly suggests to the jury that a physician “is not culpable for the negligent exercise of his or her judgment,” and wrongly “injects a subjective element into the jury's deliberations” by focusing the jury's attention on the physician's state of mind at the time of treatment” rather than on the objective standard of care.

This decision highlights the importance of how we, as lawyers, frame failure-to-diagnose cases in discussions with clients, discussions with experts, the questioning of witnesses, and presentation at trial. If we don't understand where the “objective standard of care” ends and the “subjective state of mind” begins, how can we communicate the case to the jury?

A Framework for Diagnosis

Consider the all-too-common hypothetical of a patient with chest pain in an emergency department. Maybe add a little shortness of breath. Now what?

My answer is, as always, “use the differential diagnosis.” As one Emergency Medicine physician wrote the differential diagnosis for “chest pain” is at least 440 conditions long. http://bit.ly/1pKTMke. As another asked me rhetorically, “What should [we] do if [we] are “99.99%” sure such a patient does not have a heart attack or a pulmonary embolism? http://bit.ly/1nIvy62.

To me, that is simply not enough information, nor enough of an analysis. We are still well within the objective standard of care: If a nurse, reporting to an Emergency Medicine physician, said, “a patient has chest pain, but I don't have any more information,” the doctor would throw a fit because more information is needed. Similarly, “99.99%” isn't a real empirical number, it's the doctor's shorthand for being “pretty sure.” But the doctor is making this diagnosis intuitively, rather than genuinely running through the differential diagnosis. Doctors in clinical settings aren't supposed to vaguely speculate about probabilities, they're supposed to start with the worst that could happen and then work their way down. If a doctor can, without harming the patient, obtain more information that can help rule out a serious condition, then he or she must do so.

We can objectively say that the doctor can perform an electrocardiogram, draw normal blood labs, use a pulse oximeter ' all minimally invasive and inexpensive. Then, if the doctor is still unsure, an echocardiogram would be done, and, if the situation is still non-reassuring, an angiogram. As more information comes in, and as more analysis is done by the doctor, the objective parts of the practice of medicine get filled in, and the analysis becomes increasing subjective, eventually reaching a point where the doctor must make a judgment call about what the patient really has and what to do next. The difference between “sent home with chest pain” and “sent home with chest pain after cleared by EKG, labs, and echocardiogram” can be, quite literally, life-and-death ' and thus can be the difference between liable and not liable.

The point here is not to lay down the standard of care for chest pain; the point is to show that, for each failure to diagnose case, at some point in the analysis the jury will find the doctor's judgment fell in the subjective realm. Your job is to find that point and make it clear to the jury.

Max Kennerly represents plaintiffs in civil litigation at The Beasley Firm, in Philadelphia. He is currently Co-Chair of Law and Briefing for the Plaintiffs Steering Committee in the Incretin Mimetics Products Liability Litigation pending in the Southern District of California. Mr. Kennerly writes the blog “Litigation & Trial,” http://bit.ly/1nIvy62, one of the ABA Journal's Top 100 Legal Blogs for 2012 and 2013, and is a co-author, with Jim Beasley, Jr., of LexisNexis' Pennsylvania Civil Discovery (4th ed, 2014).

The “bread and butter” of medical malpractice litigation is the failure to diagnose a case. According to the data from the National Practitioner Data Bank, failure-to-diagnose claims (one variant of which is “misdiagnosis”) accounted for a third of all malpractice payouts, the highest of any category. In some specialties, the figures reflect the national data ' failure to diagnose accounts for a little over a third of emergency medicine malpractice claims (Brown TW, et al., An Epidemiologic Study of Closed Emergency Department Malpractice Claims in a National Database of Physician Malpractice Insurers. Acad Emerg Med. 2010 May;17(5):553-60, http://1.usa.gov/1ri9MZW). But in others, the failure to diagnose is pretty much the only show in town. Diagnosis errors account for over 70% of primary care malpractice claims. Schiff, G.D., et al., Primary Care Closed Claims Experience of Massachusetts Malpractice Insurers. JAMA Intern. Med . 2013 Dec 9-23;173(22):2063-8. http://1.usa.gov/1r5ecrY.

Failure to diagnose is also, perhaps, the most controversial type of malpractice claim. Politically, it is the most common reason given for assertions of “defensive medicine.” Personally, it appears ' in my anecdotal experience, at least ' to be the type of claim doctors themselves focus on the most when they complain about medical malpractice. It just seems so unfair, they say, to be judged for getting a diagnosis wrong after the fact if they put in a good-faith effort. “Hindsight is 20/20,” and so on and so forth; my favorite medical description of making a diagnosis with the benefit of hindsight is “using the retrospectroscope.”

Often, when I read about or hear from a doctor raising concerns about liability for a failure to diagnose, his or her argument is the same: Medicine is mostly a bunch of guesswork, so unscientific and subjective that it cannot be judged. The doctors never say it that way, but the gist of this argument is that the mental steps taken by a doctor attempting to diagnose a patient simply cannot be reviewed in an objective manner because diagnosis is a form of gestalt, where the doctor uses intuition to tie together disparate symptoms in an ineffable way. When I tell them, “That's malpractice ' you should use the differential diagnosis,” they're fit to be tied.

But this article isn't about how to argue with doctors; it's about how to better represent them or their patients in malpractice cases.

The Issue

So let's talk about the law. Consider this actual closing from a defense lawyer in a malpractice case: “Now every physician must use clinical judgment. You don't practice medicine by textbook. There's no guideline that you can go to. You don't have something on your Blackberry [that says] 'Well, there's this symptom and this symptom so we're gonna do this.' They have to make decisions. A physician cannot warrant care and they cannot guarantee outcomes because of the uniqueness of treating human beings. To require otherwise, to require physicians to be perfect, is an impossible burden and we ' the law ' recognize[] that we will not do that. When you look at [the doctor's] judgments, were they careless, were they unskilled?”

It's a compelling argument, meant to dovetail this “error in judgment” instruction from the trial court: “Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence.”

The verdict was for the defense ' but then the Pennsylvania Superior Court ordered a new trial over the “error in judgment” instruction, an order affirmed by the Pennsylvania Supreme Court in Passarello v. Grumbine , 87 A.3d 285 (Pa. 2014).

'Error in Judgment'

As recounted in Passarello , drawing from cases across the country, there are three prevailing views on the “error in judgment” instruction. First, some states prohibit error-in-judgment instructions entirely. Papke v. Harbert , 738 N.W.2d 510, 517 (S.D. 2007); Hirahara v. Tanaka , 959 P.2d 830, 834 (Haw. 1998); Rogers v. Meridian Park Hospital , 772 P.2d 929, 933 (Or. 1989); Bickham v. Grant, 861 So.2d 299, 303 (Miss. 2003); Yates v. Univ. of West Virginia Bd. of Trustees , 549 S.E.2d 681, 689-92 (W.Va. 2001); Rooney v. Medical Center Hosp. of Vermont, Inc. , 649 A.2d 756, 760 (Vt. 1994); Jefferson Clinic, P.C. v. Roberson , 626 So.2d 1243, 1247 (Ala. 1993); Peters v. Vander Kooi , 494 N.W.2d 708, 712 (Iowa 1993); and Sleavin v. Greenwich Gynecology and Obstetrics, P.C. , 505 A.2d 436, 440 (Conn.App. 1986).

Second, some states allow error-in-judgment instructions in certain circumstances, such as cases involving the “two schools of thought” theory. Das v. Thani , 795 A.2d 876, 881-82 (N.J. 2002); Francoeur v. Piper , 776 A.2d 1270, 1275 (N.H. 2001); Borja v. Phoenix General Hosp., Inc. , 727 P.2d 355, 357-58 (Ariz. 1986); Kobos v. Everts , 768 P.2d 534, 537-38 (Wyo. 1989)).

Third, some states allow jurors to be instructed about error in judgment as long as the instruction does not contain additional loaded terms such as “good faith” or “bona fide.” Ward v. Glove , 206 S.W.3d 17, 41 (Tenn. 2006); DiFranco v. Klein , 657 A.2d 145, 148-49 (R.I.1995); Fraijo v. Hartland Hosp. , 160 Cal.Rptr. 246 (Cal.App. 1979).

In addition to needing to know the prevailing view of the state in which you practice, there's another reason to spend time thinking about the error-in-judgment instruction: It helps the attorney to understand how to frame the concept of mistakes in malpractice law.

The Pennsylvania Medical Society submitted an amicus brief in favor of the error-in-judgment instruction; in the words of the Pennsylvania Supreme Court, the Society's argument was “based on the premise that the practice of medicine is oftentimes an 'art' requiring a physician to make a series of decisions based on symptomology.” The court was unimpressed. Like other courts rejecting the error-in-judgment charge, it held that such an instruction wrongly suggests to the jury that a physician “is not culpable for the negligent exercise of his or her judgment,” and wrongly “injects a subjective element into the jury's deliberations” by focusing the jury's attention on the physician's state of mind at the time of treatment” rather than on the objective standard of care.

This decision highlights the importance of how we, as lawyers, frame failure-to-diagnose cases in discussions with clients, discussions with experts, the questioning of witnesses, and presentation at trial. If we don't understand where the “objective standard of care” ends and the “subjective state of mind” begins, how can we communicate the case to the jury?

A Framework for Diagnosis

Consider the all-too-common hypothetical of a patient with chest pain in an emergency department. Maybe add a little shortness of breath. Now what?

My answer is, as always, “use the differential diagnosis.” As one Emergency Medicine physician wrote the differential diagnosis for “chest pain” is at least 440 conditions long. http://bit.ly/1pKTMke. As another asked me rhetorically, “What should [we] do if [we] are “99.99%” sure such a patient does not have a heart attack or a pulmonary embolism? http://bit.ly/1nIvy62.

To me, that is simply not enough information, nor enough of an analysis. We are still well within the objective standard of care: If a nurse, reporting to an Emergency Medicine physician, said, “a patient has chest pain, but I don't have any more information,” the doctor would throw a fit because more information is needed. Similarly, “99.99%” isn't a real empirical number, it's the doctor's shorthand for being “pretty sure.” But the doctor is making this diagnosis intuitively, rather than genuinely running through the differential diagnosis. Doctors in clinical settings aren't supposed to vaguely speculate about probabilities, they're supposed to start with the worst that could happen and then work their way down. If a doctor can, without harming the patient, obtain more information that can help rule out a serious condition, then he or she must do so.

We can objectively say that the doctor can perform an electrocardiogram, draw normal blood labs, use a pulse oximeter ' all minimally invasive and inexpensive. Then, if the doctor is still unsure, an echocardiogram would be done, and, if the situation is still non-reassuring, an angiogram. As more information comes in, and as more analysis is done by the doctor, the objective parts of the practice of medicine get filled in, and the analysis becomes increasing subjective, eventually reaching a point where the doctor must make a judgment call about what the patient really has and what to do next. The difference between “sent home with chest pain” and “sent home with chest pain after cleared by EKG, labs, and echocardiogram” can be, quite literally, life-and-death ' and thus can be the difference between liable and not liable.

The point here is not to lay down the standard of care for chest pain; the point is to show that, for each failure to diagnose case, at some point in the analysis the jury will find the doctor's judgment fell in the subjective realm. Your job is to find that point and make it clear to the jury.

Max Kennerly represents plaintiffs in civil litigation at The Beasley Firm, in Philadelphia. He is currently Co-Chair of Law and Briefing for the Plaintiffs Steering Committee in the Incretin Mimetics Products Liability Litigation pending in the Southern District of California. Mr. Kennerly writes the blog “Litigation & Trial,” http://bit.ly/1nIvy62, one of the ABA Journal's Top 100 Legal Blogs for 2012 and 2013, and is a co-author, with Jim Beasley, Jr., of LexisNexis' Pennsylvania Civil Discovery (4th ed, 2014).