In most jurisdictions, it is not enough for a plaintiff to claim that they suffered from the malpractice of a doctor. Because of the specialized nature of medical care, treatment, and disease diagnoses, most states require that another indepen­dent physician certify that they believe an act of malpractice occurred. The over­whelming majority of states have special rules that require medical malpractice

Duty of a Specialist: involves three duties of care

2. The duty to use the care and skill ordinarily used by reputable physicians/spe-

skill and the application of learning

A misdiagnosis [10] refers to a doctor diagnosing a condition but not correctly. This could cause the real condition to worsen while the patient undergoes unneeded treatment.

When doctors do not timely diagnose conditions, a patient will lose valuable treatment time. Oftentimes, this can make the difference between life and death. For example, certain types of cancer must be treated without delay before they metasta­size and spread. Pancreatic cancer is one example of difcult-to-diagnose cancer that is often discovered after it is too late to treat the patient. In other cases, doctors could miss the signs that may indicate an imminent heart attack.

Missed Diagnosis: The patient may be treated, albeit for the wrong underlying condition.

Delayed Diagnosis: The patient’s underlying illness is not diagnosed, and the patient is sent home with no apparent treatment.

Common misdiagnosis and missed diagnoses include:

• Cancer—Given the number of cancers a person can have, it can be difcult to

cer can progress and prove fatal.

viduals with celiac disease.

• Fibromyalgia.

The severity of the injury, suffering, and remedial measures needed to restore the patient to health or abate or mitigate their pain and suffering will, in large measure, be the yardstick of the damages for which the physician who missed or misdiag­nosed the underlying condition may be responsible.

Diagnostic errors cause 10% of all patient deaths.

This case is more than just poor paperwork. The injury to this patient, though, was the same as if the doctor had misread the biopsy results and diagnosed cancer where there was no such condition. Huitt v. Iowa Clinic, P.C., No. LACL 139726 (Iowa Dist. Ct. Polk County).

The most commonly found malpractice is a doctor’s failure to:

• Perform or analyze a diagnostic mammogram.

mammogram and discovered nodular calcications in her right breast. He then con­cluded that these calcications were benign. In 2010, Ms. Loud was diagnosed with advanced breast cancer. She then sued Dr. Short and Charleston Radiologists, P.A. for medical malpractice. Loud alleged that Short’s failure to diagnose her developing breast cancer in 2008 allowed it to metastasize. At trial, Loud’s oncol­ogy expert testied that Loud likely had early stage I cancer at her 2008 mammo­gram, and at that time, she had an 80+% chance of survival if given appropriate treatment in 2008. Dr. Short testied that the calcications were scattered and should therefore be considered benign and were unrelated to her current metastatic cancer. Dr. Short’s retained experts on mammography and oncology agreed that Loud’s breast cancer developed subsequent to the 2008 mammogram and that the large calcications were indicators of a benign mass.

Heart attacks have been a leading cause of death in the United States for decades, so doctors should be very familiar with the list of symptoms associated with them, including the differences between symptoms experienced by men and women [18]. In many cases, a “warning” heart attack occurs before a catastrophic event. When doctors quickly recognize the signs of a smaller heart attack, treatment is possible to help prevent a life-threatening event. When a doctor fails to recognize the signs of a heart attack [19] and the patient is injured as a result, a medical malpractice claim for failure to diagnose a heart attack may be appropriate [20]. Every year, over 600,000 people die of heart disease in the United States [21], making it the leading cause of death for both men and women. It accounts for around 25% of deaths nationwide. Heart conditions, including heart attacks, can be challenging to diag­nose. When a patient presents with a heart attack and the physician fails to identify and treat it promptly, it also may be grounds for a claim of medical malpractice. When it causes severe damage to the heart muscle or even death, it may be a medical malpractice claim.

On October 16, 2013, plaintiff Terrea Holly, 26, went to the emergency room at Detroit Receiving Hospital, Detroit, MI, with high heart and respiratory rates and shortness of breath with exertion that had lasted for 5 days. After being evaluated and undergoing an electrocardiogram, she was released. However, her condition worsened the next day, and she was transported back to the hospital by ambulance. While at the hospital, she suffered cardiac arrest and was pronounced dead at 3:50p.m. Holly’s mother, Dushon Watkins, led suit on behalf of Holly’s estate, suing John Wilburn, M.D., the hospital, and its various legal entities. According to the lawsuit, Holly was evaluated by a resident on October 16 and was found to have high blood pressure, a high respiratory rate, and blood with an oxygen level of 94%. Dr. Wilburn, the attending physician, did an electrocardiogram and diagnosed her with a viral syndrome, also known as chronic fatigue syndrome; mild normocytic anemia, a condition that affects red blood cells; and dehydration. Wilburn dis­charged Holly after her condition improved with uids and rested at the hospital. Holly returned home, but her shortness of breath continued and worsened the next day. She returned to the ER that afternoon via ambulance with the same symptoms, but her condition had severely deteriorated. The estate alleged several deviations from the accepted standard of care the rst time Holly went to the ER, especially in light of clear indications of a pulmonary embolism at that visit. The estate argued

that the deviations included a failure to complete a full evaluation of Holly’s condi­tion, failing to include venous thromboembolism on the differential diagnosis, and failing to perform and review diagnostic tests to conrm the diagnosis. The jury determined that the hospital was negligent and deviated from the standard of care, resulting in Holly’s death. The jury determined that the estate’s damages totaled $40 million. The verdict was expected to be reduced pursuant to the state’s cap on non­economic damages.

On June 9, 2012, plaintiff Charles Smith, 53, a laborer, was diagnosed with weakness on the left side of the body after suffering an acute stroke. As it turns out, 5 days earlier, Smith had presented to the emergency room at Geisinger Shamokin Area Community Hospital with complaints of pain in the left side of his chest, shortness of breath, headache, and numbness radiating into his left arm. Smith was seen by Dr. Jere Wagner. According to his medical history, he was at an increased risk for stroke because of both his family history and his own medi­cal history, which included occlusion and stenosis of the carotid artery, high blood pressure, angina, and tobacco use. Dr. Wagner ordered blood work, one set of cardiac enzymes, a chest lm, and an electrocardiogram and placed Smith on a heart monitor. Smith claimed that nothing in the record showed that Wagner per­formed a neurologic examination or upper extremity examination. After the tests were reported as normal, Smith was discharged with a diagnosis of noncardiac chest pain.