It seems counter-intuitive, but just because a doctor made an incorrect diagnosis does not mean that he or she was negligent. If a physician’s conduct evaluating and treating a patient was reasonable, then there was no “breach of the standard of care” even if the ultimate diagnosis or outcome was something quite different than what that doctor perceived.
The standard by which healthcare providers are judged is what a “reasonably prudent” practitioner would have done under the “same or similar circumstances.” This means that you look at their conduct at the time of treating the patient, not the ultimate outcome.
In evaluating patients, doctors often make judgment calls based on the information they have at the time. Many disease processes are not easy to diagnose – even for the most skilled providers. One condition can present itself very similarly to other conditions. Some may be quite dangerous, others much less so. Frequently, there is no lab testing or imaging study to provide a definitive answer.
Doctors do what is referred to as a “differential diagnosis.” That is, they consider and weigh the likely possibilities and the relative seriousness of each. In some way or another, those potentialities are rank ordered.
One might say that if this is the case, the most threatening possibility should always be treated aggressively. The immediate problem with this idea is that virtually all procedures and medications have risk, often huge ones. Patients can suffer severe harm from unneeded treatment.
If there is a possibility that a patient has a life-threatening condition, but the likelihood appears low and the treatment options have major risks, it might be entirely reasonable for the physician to take a conservative approach.
Unfortunately, a relatively remote possibility sometimes turns out to be what the condition actually is. As doctors might say, it often takes time for a disease to “declare itself.”
The same sort of situations can be seen in cases involving treatments for injuries or complications. For example, a doctor could make a reasoned judgment call that a patient will probably improve without the need for surgery. When it turns out that, in fact, the patient did need surgery, there has been a delay, and that delay might negatively impact the outcome.
Of course, in hindsight it’s easy to see where and how opportunities were “missed” and how someone could have been treated more effectively. But remember, we don’t judge conduct with the perfect vision of looking back. You must put yourself in the shoes of the provider at the time he or she was interacting with the patient.
Not surprisingly, when reviewing cases doctors can disagree about whether the judgment calls made at the time were good ones. Technically, this means you could bring a malpractice case based on attacking a doctor’s judgment call. The jury can decide who was right. However, the reality is that medical malpractice cases based on faulty judgment calls are usually problematic for the plaintiffs.
Unless the doctor’s reasoning at the time was clearly wrong, such cases can often be effectively defended. The defense will argue that it’s “unfair” to judge someone’s conduct with the “perfect 20-20 vision of hindsight.” When supported by credible experts, that is often an argument which is likely to get traction with juries and judges.
For these reasons, most medical malpractice lawyers are very wary of judgment call cases. We are no exception. These cases are complicated and expensive. We do no one any favors by taking cases where we don’t have a strong chance of success.
So, yes, we’ll often end up telling people who come to us that they don’t have a viable case, even if the doctor was “wrong.”
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