Damages, Causation Are Obstacles in Abdominal Pain Med/Mal Cases
When deciding whether to pursue these claims, there are important considerations
Abdominal pain can be indicative of a host of medical issues. Heart attack, appendicitis, diverticulitis, and gallbladder inflammation are just some of the possible diagnoses that could be missed in the ED. That does not mean a malpractice lawsuit will be successful.
“Counsel must weigh not only the liability and causation issues, but also the value of the case,” explains Timothy L. Barnes, Esq, an attorney with Morristown, NJ-based Porzio, Bromberg & Newman.
If plaintiff attorneys are deciding whether to pursue an abdominal pain claim, Barnes says there are important considerations:
• Did staff carefully review the patient’s history? “Were comorbidities part of the intake? Was a family history considered? Were the patient’s medications part of the inquiry?” Barnes asks.
• Did staff order, interpret, and act on the appropriate tests and radiographs? “Chest pains should lead to an ECG, abdominal pain to a CT scan, and pelvic pain perhaps should lead to an ultrasound,” Barnes says.
• Did an expert need to review or interpret test results? ED providers often are dependent on a radiologist to interpret X-rays. Sometimes, staff conducts its own preliminary review. “The interpretation and decision to act thereafter, to admit or discharge, or to seek a consult, would all depend on the reading of the films,” Barnes explains.
• Can a plaintiff attorney prove causation? “Causation is, and should always be, in the forefront of the lawyer’s mind,” Barnes says.
The pertinent question with misdiagnosed abdominal pain is: If the patient was properly treated, would the ultimate outcome have been substantially different? In other words, the plaintiff has to determine what injuries arose from the alleged malpractice that otherwise would not have occurred.
“Proximate cause can be a viable defense at trial, and should be addressed by counsel in the workup,” Barnes asserts.
Plaintiff attorneys may discover that, in fact, malpractice occurred, but the abdominal pain patient’s poor outcome would have happened anyway. This was the situation in a recent case Barnes reviewed that involved missed myocardial infarction (MI). The potential plaintiff was a man who was angry an EP had misread the ECG and sent him home, only for the patient to be readmitted the next day with a full-blown MI, leading to bypass surgery. The EP did misread the ECG. The issue was that if the ECG had been read correctly, it would not have made any difference in the outcome.
“[The patient] would have had some muscle damage and would have still needed a coronary artery bypass graft,” Barnes reports. “We declined the case.”
• What is the value of the case? “The patient’s limited life expectancy is always a hurdle to overcome,” Barnes says.
Many older ED patients are living with a host of pre-existing conditions, which, coupled with the patient’s age, argue against investing the needed time and money to pursue a malpractice claim. Even if there is clear liability and causation, the case of misdiagnosed abdominal pain still might not be worth pursuing from a financial standpoint. “Expert fees are significant everywhere. Multiple experts are usually needed,” Barnes says.
Multiple depositions also are necessary. “Expenditures of $15,000 presuit are not unusual. Coupled with the potential trial costs, spending $50,000 for a completed case would be routine,” Barnes observes.
Additionally, in some states, there is a delay of several years from filing the malpractice lawsuit to actually going to trial, since the COVID-19 pandemic has delayed all aspects of trial work.
“Counsel should look long and hard in considering these cases,” Barnes says. “There are many reasons not to pursue them.”
Many older ED patients are living with a host of preexisting conditions, which, coupled with the patient’s age, argue against investing the needed time and money to pursue a malpractice claim. Even if there is clear liability and causation, the case of misdiagnosed abdominal pain still might not be worth pursuing from a financial standpoint.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.