Lost Chance of Survival

We take many calls concerning medical negligence cases, and we frequently get inquiries from people who claim their doctor delayed in diagnosing their cancer. These cases can be difficult to evaluate for the following reasons:

1) Proximate Cause – did the delay cause any damage?

2) Burden of Proof – is there actual proof the diagnosis was missed, such as a radiology study that required follow up?

3) Differing types of cancer have different cure rates, growth rates, etc.

Legally, the biggest issue in a delayed diagnosis cancer case is lost chance of survival. Currently, in a death case, a Plaintiff has the burden of showing that the doctor’s malpractice reduced Plaintiff’s chance of a survival to less than 50%. For the best explanation of this issue, review Holt v. Taylor, 344 Ark. 691, 43 S.W.3d 128, 2001 Ark. LEXIS 286 (2001). In Holt, on April 30, 1996, Sheryl Holt was being prepped for gallbladder surgery and underwent a routine chest x-ray. The x-ray noted “a right apical mass, infiltrate and/or plural thickening.” This was abnormal and the radiologist recommended follow up. No action was taken.

In almost all instances, pressure ulcers (sometimes referred to as bedsores or decubitus ulcers or pressure injuries) should NOT develop on a patient in a hospital. Many patients who lose mobility due to coma or stroke or medication, no matter their age, can be at risk of a pressure injury on their bony prominences, such as their coccyx (tailbone), heels, or elbows. Failure to properly reposition a patient, as required by the applicable standard care, can lead to debilitating pressure ulcers. Nutrition, hydration and proper skin assessment by nurses are also important in preventing pressure ulcers. Patients and families should be aware that typically a patient should be repositioned every two hours if lying down, or if sitting up in a chair, the patient should be repositioned every hour. The seated position puts more pressure on the area around the coccyx (tailbone) increasing risk for skin breakdown. Pressure ulcers are serious injuries that should be prevented and avoided.

US News and World Report has published an article this morning that summarizes a study done by doctors from John Hopkins University School of Medicine. The study found that medical errors are the third leading cause of death for Americans behind only heart disease and cancer. The study estimates 251,454 deaths result each year from medical mistakes. It appears this was based on numbers from 2013 and before. The study’s lead author, Dr. Martin Makary a professor of surgery and health policy at John Hopkins School of Medicine, stated “People don’t just die from heart attacks and bacteria, they die from system-wide failings and poorly coordinated care.”

Dr. Makary went on to state that “throughout the world, medical error leading to patient death is an under-recognized epidemic.”  The study defined medical error as “lapses in judgment, skill or coordination of care; mistaken diagnoses; system failures that lead to patient deaths or failure to rescue dying patients; and preventable complications of care.”

440,000 patients die every year from preventable medical errors. This cost our country billions of dollars every year and causes untold stress and heartache on our American families. It has been reported that wrong site, wrong surgery, wrong patient “never events” are happening in United States hospitals at the rate of about 40 times per week. Our medical care providers in many instances do great, life saving work. However, as the statistics show, there is room for improvement in many facilities. When you hear complaints about the number of medical negligence lawsuits, remember the facts above. Also, note that medical negligence lawsuits amount to just one-half of one percent of all health care costs according to the Congressional Budget Office.

Will Bond and Neil Chamberlin, McMath Woods partners, recently represented a 76 year old gentleman against a Northwest Arkansas hospital. The client had developed a Stage IV pressure ulcer (commonly referred to as a bedsore) on his coccyx during his hospital stay. The hospital denied any negligence. The case was tried to a jury in Fayetteville, Washington County, Arkansas in May of 2014. The jury returned a verdict in favor of the client for 1.5 million dollars. The hospital has filed a notice of appeal. The pressure ulcer had caused the client significant damages including forcing him to have a colostomy and a procedure to cover the wound on his coccyx commonly referred to as “flap” surgery.