"Lost chance of survival": Guaranteed to increase defensive medicine?

A new trend is occurring, taking “failure to diagnose” to extreme measures. A warning to primary-care physicians everywhere:

The growing acceptance of the lost chance doctrine represents a real threat to primary care physicians, who are often the first line of defense in diagnosing potentially serious conditions. But it also provides an alternative means of compensation for malpractice plaintiffs whose cancer or other conditions should have been diagnosed earlier . . .

. . . In states that have adopted the lost chance doctrine, however, Fitzpatrick feels that the liability threshold has been lowered to such an extreme degree that “it should send shudders down physicians’ spines.” In such cases, he claims, “medical experts will always debate the rate of the cancer’s growth and the prognosis for recovery or survival if it had been diagnosed earlier. Of course, those are legitimate issues. But there are some plaintiffs’ experts out there who have never met a cancer they couldn’t have cured if only the defendant had made the correct diagnosis three months earlier.”

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  • Anonymous

    Why stop at just three months earlier for considering the ‘lost chance at survival’. Cells are dividing every second. Even minutes clearly count. Delays in getting the patient onto the surgical schedule the same day could become compensable.

    The ‘lost chance’ theory is a bit of a crock. What was actually lost if the chance of survival goes from 2% to 1%, or from 99% to 98%. Either way, the natural history of the disease caused the same amount of lost chance at life, as the contributory ‘negligence’.

    With the retrospectoscope viewing only outcomes the patient, dependents or heirs didn’t like no reasonable ascertainment of how likely the cancer was to be detected earlier can ever be meaningfully assessed. Read data can be generated only if the retrospectoscope is applied to all outcomes, to determine whether there was any meaningful difference in practices that was associated with the poor vs good outcomes

  • The Grand Wazoo

    This may serve to increase health care costs. If a 38 y/o patient presents with constipation and bright red blood per rectum (probably due to hemorrhoids) I will then refer that patient to a gastroenterologist for colonoscopy. Could I wait for this bout of constipation to pass and determine if there are further episodes of bright red blood per rectum? No, not in the face of possibly curing this patient’s cancer according to the lawyers. Yet, the chance that this patient does have cancer ( no family history, etc. ) is probably 1 in several thousand.

  • Anonymous

    “This may serve to increase health care costs”

    The fact that you don’t already refer 38 year olds with BRBPR for colonoscopy means you are already behind the times when it comes to defensive medicine. Look at it this way. If a patient has a 1/7000 chance at a diagnosis, you are going to be sued for 1/7000 patients if you don’t order the test. I only start balking when a patient has a 1/100,000 chance of disease.

  • Anonymous

    One might give a bit more credence to the complaints when it comes to the legal system if, in fact, the provider community actually did something about the medical whores that work these cases in the same manner as their lot lizard bretheren work the truck stops. Eveeybody knows (or should know) that no medical malpractice case can be brought without an assisting provider on the plaintiff’s side. Why not push for revocation of licenture for these whores? I am sure that one could come up with an ingenious way of doing so.

  • Anonymous

    You are talking as if I could go out and do something about the medical whores…I am just a working-stiff doc trying to make ends meet…the only thing I can do is practice defensive medicine to cover myself…

  • Anonymous

    But the plaintiffs *lost* the case. So obviously the jury didn’t buy the “lost chance of survival” argument.

    OTOH, this patient’s physicians insisted for 10 months that her problems were all in her head. They prescribed anti-anxiety meds, told her to see a psychiatrist, etc. etc. While the outcome for stomach cancer is never good, it probably didn’t help this patient’s overall survival to be sent to a psychiatrist rather than further physical evaluation.