A Medical Question for the Lawyers

[gallahadesquire]

A friend and I had a discussion a few days ago. He'd had a pelvic lymph node removed, and had heard nothing of the results (pathology / infectious disease). For four months.

He received a phone call from his Surgeon's office, telling him that ... sorry, fella, but apparently it's lymphoma. At least 80% chance of it. We'll get back to you.

 

Then he gets a phone call from the office: Hi, we spoke to the Hospital Board. They've decided they will pay all of your medical bills and treatment for this, but you have to waive your right to sue.

I'm an MD, not a lawyer, but I screamed at him Don't sign anything without talking with a lawyer. Mind you, he's 23, and basically a very straight-shooter. To me, it seems prima facie admission of Medical Malpractice due to Negligence. My reading of negligence has four points, of which I usually only remember three:

1. Duty due to contract;
   
2. Failure of duty and standard of care (for this jurisdiction, national, not local, standard of care);
   
3. Actionable injury, which includes pain and suffering; and
   
4. Proximate cause.
   

I think we've hit 1, 2, and 4; 3 is pending outcome [Hey, you doctor types: Is delaying therapy for "Lymphoma" for four months a bad thing? Too many questions there for me to answer, but my brain says "Duh, yeah!"

 

What advice would you give this poor kid?

[+ GregM]

Im not a Dr or lawyer but this is a form of cancer that can spread quickly. I would sue their pants off! And demand they pay up for all forms of treatment.

 

Hugs,

Greg

[gallahadesquire]

Im not a Dr or lawyer but this is a form of cancer that can spread quickly. I would sue their pants off! And demand they pay up for all forms of treatment.

 

Hugs,

Greg

 

That was my initial reaction. Apparently, the tech "failed to report the finding" to the surgeon. Free medical care AND pain and suffering. There may be long term consequences, too.

[+ GregM]

That was my initial reaction. Apparently, the tech "failed to report the finding" to the surgeon. Free medical care AND pain and suffering. There may be long term consequences, too.

 

The pain was awful! For me 24 hrs after my last chemo I was moving around like a 100 yr old man. And the pain waist down was almost unbearable. I would need help getting in and out of bed and sometimes using the shower and toilet. And dont get me started on the random infections that had me running to the er and hospital visits. I know medical folk are people but this is medical stuff. They need to be triple checking their stuff. Whenever I went in for my chemo refills or needed drugs given to me there was always 2 nurses to verify what was going on. Smh. I hope your friend has an easy treatment with as lil bumps as possible.

 

Hugs,

Greg

[Bearofdistinction]

Im not a Dr or lawyer but this is a form of cancer that can spread quickly. I would sue their pants off! And demand they pay up for all forms of treatment.

 

Hugs,

Greg

 

 

BLATANT - NEGLIGENCE BORDERING ON CRIMINAL~

[Rudynate]

BLATANT - NEGLIGENCE BORDERING ON CRIMINAL~

 

 

He should communicate with them through an attorney no direct contact. Suing somebody is a full-time job.

 

Obviously they are willing to settle. If he has an attorney experienced at negotiating this sort of settlement, with such egregious negligence, he could probably get a pretty attractive settlement.

[+ Funguy]

I agree with all of the above shit about negligence, etc. but you are all forgetting 3 things:

1. While he mulls over his legal options, he better find a new doctor immediately and start treatment;

2. Thanks to Republicans, he now has - let's all say it - a pre-existing condition!

3. As Greg would rightly know, future pain and suffering can be around the corner.

[Rudynate]

I agree with all of the above shit about negligence, etc. but you are all forgetting 3 things:

1. While he mulls over his legal options, he better find a new doctor immediately and start treatment;

2. Thanks to Republicans, he now has - let's all say it - a pre-existing condition!

3. As Greg would rightly know, future pain and suffering is around the corner.

 

 

But the protections for people with pre-existing conditions are still in effect and will be for the foreseeable future. Don't forget all of the hoops that House bill has to go through before it becomes law. The guy could be completely healthy and his lymphoma a distant memory before that happens.

[Chuckball]

It would seem the patient has a legitimate suit in tort and contract. It is extremely important that the patient retain legal counsel immediately. A litigation lawyer will have to investigate the case extensively before bringing court action. The lawyer will also have to obtain expert evidence from medical professionals. This all takes time. The client has a duty to mitigate damages so beyond common sense, it is essential that patient receive competent çontinuing medical treatment.

[whipped guy]

This is a nobrainer, but while I realize that the patient is a 23 year old why did he not contact the physician's office when the results were not communicated to him after a week or so?!?!?! Probably because of the "no news is good news mentality" and fear of what the reality could be!

 

A few years ago My primary physician recommended an echocardiogram after an ECG revealed an irregularity. When I did not get the results back in one week I called the doctor's office and was told that they usually did not get the results back until two weeks. Not normally how long it takes from past experience, but they said that they were using a "different" provider.

 

However, rather than wait for the results I did two things. I first made an appointment with and saw the cardiologist of MY choice as opposed to the one that my physician was planning to refer me to. Since the echo was so recent that cardiologist suggested getting the results. Second, I marched into my primay's office after a phone call where I was told that they that they were still waiting for the results and said that I would not be leaving until I had the results in my hands. I could hear all sorts of scrambling behind the scenes and after thirty minutes the elusive report magically materialized. It was handed to me by the cardiologist of the group saying that all was normal. Good news as it did not add insult to injury given that the ECG had revealed other heart related issues.

 

I also did a third thing... switched primary physicians...

 

Having been in a quasi medically related field I am certainly familiar with how such things operate and it takes time. So as others have said this patient needs to get the treatment that he needs and that certainly takes priority over seeing a lawyer, not that getting legal assistance should be put on the back burner!

 

Also, regarding preexisting conditions the current law is not a panacea as it often allows treatments for such conditions that might not be optimal for the given situation. Plus, as @Rudynate says there is still a long way to go and with any luck and thinking optimistically that aspect might actually be improved as it is something for which there is much support.

 

 

 

 

.

[+ Gar1eth]

A friend and I had a discussion a few days ago. He'd had a pelvic lymph node removed, and had heard nothing of the results (pathology / infectious disease). For four months.

He received a phone call from his Surgeon's office, telling him that ... sorry, fella, but apparently it's lymphoma. At least 80% chance of it. We'll get back to you.

 

Then he gets a phone call from the office: Hi, we spoke to the Hospital Board. They've decided they will pay all of your medical bills and treatment for this, but you have to waive your right to sue.

I'm an MD, not a lawyer, but I screamed at him Don't sign anything without talking with a lawyer. Mind you, he's 23, and basically a very straight-shooter. To me, it seems prima facie admission of Medical Malpractice due to Negligence. My reading of negligence has four points, of which I usually only remember three:

1. Duty due to contract;
   
2. Failure of duty and standard of care (for this jurisdiction, national, not local, standard of care);
   
3. Actionable injury, which includes pain and suffering; and
   
4. Proximate cause.
   

I think we've hit 1, 2, and 4; 3 is pending outcome [Hey, you doctor types: Is delaying therapy for "Lymphoma" for four months a bad thing? Too many questions there for me to answer, but my brain says "Duh, yeah!"

 

What advice would you give this poor kid?

 

The only thing I wonder is can there be a defense that he didn't ask for the results sooner?

 

Gman

[+ nycman]

The only thing I wonder is can there be a defense that he didn't ask for the results sooner?

 

Gman

 

In a sane world....the patient would bare SOME of the respomsibilty.

 

We however do not live in a sane world.....the doctor will fry....

over a clerical error....without ever facing a jury of his "peers".

 

It's easy to blame the doctor...but the "system" failed.

[+ Gar1eth]

In a sane world....the patient would bare SOME of the respomsibilty.

 

We however do not live in a sane world.....the doctor will fry....

over a clerical error....without ever facing a jury of his "peers".

 

It's easy to blame the doctor...but the "system" failed.

 

On the other hand-if the doctor can't remember to look for results -as I can see happening in a busy practice-his office really screwed up in not following up. I'm not saying I can't see how it could happen. But doctors -esp surgeons-are even today still put up somewhat on a pedestal. There are responsibilities that go along with that elevation. Making sure you tell a cancer patient that he has cancer is one of those responsibilities. And whatever the reason, while I'm sure a majority of physicians (his peers) would empathize with the situation, and think 'there but for the grace of G-d...' but I doubt they would condone what happened.

 

Gman

[+ Gar1eth]

In a sane world....the patient would bare SOME of the respomsibilty.

 

We however do not live in a sane world.....the doctor will fry....

over a clerical error....without ever facing a jury of his "peers".

 

It's easy to blame the doctor...but the "system" failed.

 

On the other hand-if the doctor can't remember to look for results -as I can see happening in a busy practice-his office really screwed up in not following up. I'm not saying I can't see how it could happen. But doctors -esp surgeons-are even today still put up somewhat on a pedestal. There are responsibilities that go along with that elevation. Making sure you tell a cancer patient that he has cancer is one of those responsibilities. And whatever the reason, while I'm sure a majority of physicians (his peers) would empathize with the situation, and think 'there but for the grace of G-d...' but I doubt they would condone what happened.

 

Gman

 

Two cases in point that medical office screw ups can have far reaching effects.

 

The first one here only hypothetical. The second-in my case only annoying. But might have had real consequences for someone.

 

#1. I was tested for STI's about 2 months ago. The office said they would call if anything was positive. I haven't heard from them. And I never looked at the patient portal because it's a pain. I was fairly sure I was negative because for the most part I'm safe. And subsequent testing when I had the blood in the urine confirmed it. But if someone had screwed up. Well it would be both our faults as common sense says I should have looked. But they have a duty both moral and legal to inform me.

 

#2. My nurse practitioner still works at the same organization but her office changed floors. This apparently necessitated a change in the fax number for receiving refill requests from pharmacies. And apparently from what I gather-their fax requests don't actually print out but maybe go to some type of computer mailbox-or something like that. In any case whatever system they had screwed up. I had a drug request in for over a month that was never filled because for whatever reason they either couldn't or maybe just didn't access the old fax number. In a properly run office they would have either had someone checking the old fax number periodically or possibly they could have sent out notices to every pharmacy that they had ever received a request from that the number had changed-or maybe it would have been possible for the fax number to send out a programmed message that her number had changed. Instead I wonder how many refill prescriptions for her and the two other practitioners who changed floors with her have gone awry. That's a major fail that the medical group didn't figure out someway to deal with.

 

Gman

[TruthBTold]

The only thing I wonder is can there be a defense that he didn't ask for the results sooner?

Gman

 

Your friend is the patient and does not have to responsibility to request test results. As everyone has suggested, there are a couple of things he can do and he can do them simultaneously. He can mitigate the damages by getting treatment asap. You might contact another doctor or hospital and see if they will begin treatment as soon as they can. I do not think that his current doctor would ever fail to treat him (and probably not charge him) if he refuses to sign a waiver so he can be treated by his current doctor if he wished. At any rate, I would also set up an appointment with an attorney and see what he/she has to say. His current doctor/hospital seems to already have admitted to making a mistake.

[+ lkbreth]

The standard practice in a situation where a biopsy is positive for cancer is for the examining pathologist to call the operating surgeon or doctor who submitted the sample and inform them personally of the critical result.

 

There are a few details that are unusual here, though.

• The phone call with the results mentions the biopsy is 80% likely to be lymphoma. When a pathology report is issued, the last line on the form starts with the words FINAL DIAGNOSIS: _____. It will either be benign (0%), malignant (100%), or indeterminate, suspicious (?%). An indeterminate result will not be sufficient; additional tests or another biopsy with more tissue will be required. An oncologist will not treat without this certainty.
  
• The call indicating that we spoke with the "hospital board," who authorized free treatment. This is highly unusual. Hospitals have risk management departments, which would be involved in any case with a bad outcome that could result in litigation. In any case, lymphoma is typically treated with chemotherapy, sometimes also with radiation, which is usually performed as an outpatient. So, many details here seem unusual.
  

[caliguy]

My dad got a misdiagnosis that cost him his life 10 years ago. Kidney cancer but was diagnosed as a back injury. You got back pain? Well ,of coarse it must be some kind of injury. They weren't looking for cancer as a cause though.

 

Even did the back surgery which only compounded the issue. Besides the surgery he was put on pain meds which helped but masked what was happening. By the time the correct diagnosis was made after a year and surgery was done it was said that his cancerous kidney had basically dissolved and of coarse spread to everywhere else.

 

Like your friend my parents are "straight shooters" who think there's too many lawsuits going on as is. Therefore nothing was done. He died and that was that. My Mom justifiably hates Doctors and hospitals now.

[gallahadesquire]

One nurses'-aide ordered the office supplies, by fax. Once, when something was missing, she called to find out what had happened.

 

"Oh, we don't service you're office anymore."

"But I send you the faxes!"

"Oh, yes. We just fax them forward to your supplier."

 

This went on for a couple of years.

 

THAT's customer service.

[+ purplekow]

He definitely should not accept an offer for free care. There may be negligence here but without all the facts, calling the situation criminal is an overreach. Were the results available before four months or did the sample need to be sent out to a specialty lab to determine if indeed it was a lymphoma. Is there harm done? Even if there was a delay, there are some types of lymphoma which are aggressive and there are some that are indolent and a several month delay may have not repercussions. Was the biopsy a curative procedure? Local disease with minimal changes in a single lymph node may be cured by removal of the lymph node. If indeed he had an excisional biopsy which was curative, there may not be any malpractice.

There is no doubt that the patient has a right to be upset and it seems likely that he got less than optimal care. Was there malpractice? The offer of free care suggests that the hospital thinks so, but there are many more questions which need to be answered before that is determined.

[+ nycman]

Was there malpractice? The offer of free care suggests that the hospital thinks so

 

I'm actually inclined to argue the exact opposite.

 

The fact that the hospital is offering "free care" suggests to me that they think this is more of a "PR disaster" rather than a "malpractice" one.

 

As your post astutely points out...just because you got crappy and poorly organized care....doesn't necessarily mean there are grounds for malpractice.

 

I just don't think the hospital would be trying to cut a deal in a malpractice case. If it was truly malpractice....they know they're doomed and

trying to cut a side deal with the patient is only going to make them look worse in court and cost them even MORE $$$ from the jury.

 

"See they KNEW they were guilty....throw the book at them"....is unfortunately how most jurors would interpret their offer.

 

I just think it's too great of a risk if they KNOW it's a malpractice case...and trust me...they KNOW.

[kewtex]

Then he gets a phone call from the office: Hi, we spoke to the Hospital Board. They've decided they will pay all of your medical bills and treatment for this, but you have to waive your right to sue.

 

Waive the right to sue the surgeon or the hospital? If the hospital, it appears the facility is trying to cover its ass. Why? Is the surgeon employed by the hospital? Did the hospital's pathologist incorrectly read the specimen?

 

What advice would you give this poor kid?

 

Contact a reputable malpractice attorney. Research the cost of a full course of treatment. Winning a malpractice suit is never a slam-dunk. Foregoing a court case in favor of free medical care may be a safer bet than pinning one's hopes on twelve strangers in a jury box.

[+ sniper]

I'm actually inclined to argue the exact opposite.

 

The fact that the hospital is offering "free care" suggests to me that they think this is more of a "PR disaster" rather than a "malpractice" one.

 

As your post astutely points out...just because you got crappy and poorly organized care....doesn't necessarily mean there are grounds for malpractice.

 

I just don't think the hospital would be trying to cut a deal in a malpractice case. If it was truly malpractice....they know they're doomed and

trying to cut a side deal with the patient is only going to make them look worse in court and cost them even MORE $$$ from the jury.

 

"See they KNEW they were guilty....throw the book at them"....is unfortunately how most jurors would interpret their offer.

 

I just think it's too great of a risk if they KNOW it's a malpractice case...and trust me...they KNOW.

 

Your assessment is wrong. I worked in property and liability insurance. They've discovered from experience that the "clam up, admit nothing" approach is what makes matters worse because it royally pisses people off. The old logic of "admitting anything costs more" has been found not to be true, and if they come up fron with something, particularly with unsophisticated potential plaintiffs who don't really have the expertise to assess their own case, they can often get away with paying FAR less. May hospitals now have a policy of apologizing for errors. For every one person who uses that admission agaisnt them and gets more money, several more settle for a pittance and avoid court costs. Cancer plus delay in treatment = this guy has a case. And the lawyer can probably come up with a figure that will be more than the hospital was offering, yet low enough that they'll take it in a heartbeat.

There might be SOME risk that it turns out to be a false positive and there was no actual harm, but in that case he hasn't lost anything anyway.

[edjames]

First and for most I would strongly urge this young man to seek immediate medical attention. While doing so I would contact a malpractice attorney and seek reliable legal advice. The wheels of justice churn very slowly, so he had better get medical attention, first and for most. I would not sign anything without sound legal/medical advice.

 

Secondly, lesson learned, never "wait' for the test results. Be proactive. Give the lab/doctor's office a few days and then call for results. Before you leave the office ask when test results will be available to you and when will they email/fax/phone you the results. If you do not hear from them, call and request them.

[Bearofdistinction]

The only thing I wonder is can there be a defense that he didn't ask for the results sooner?

 

Gman

 

NO --- The Physician has an AFFIRMATIVE DUTY -- to report promptly as humanly possible to the patient any potential risk or hazard revealed in any an all medical test and recommend a course of care/intervention/followup

[JayCeeKy]

I had a very similar medical malpractice case back in the 1980's - failure of a doctor's medical staff (nurse) to get me in to see the doc immediately as time was of the essence. The three D's of medical malpractice were met: 1)there was a DUTY on the part of the doctor/staff to provide a service; 2)there was a DERELICTION of that duty; 3)there were DAMAGES. The most important step in a malpractice lawsuit is to get the best MEDICAL MALPRACTICE LAWYER in your locale (ask other lawyers for recommendations). Remember, however, that once a lawsuit is mentioned, the medical professionals involved will no longer have personal contact with you (you can still get your records). Once your lawyer contacts the medical professionals, the insurance company of the medical providers will now deal with your lawyer. I would encourage this young man to save any and all documentation he has from this episode, write up a chronology of events, and DON'T TALK TO ANYONE ABOUT THE CASE WITHOUT YOUR LAWYER'S CONSENT. In my particular case, the doctor that I procured for the subsequent treatment had a meeting with my lawyer and even stated that he would testify that he believed that malpractice had occurred (it is very, very rare for a doctor to testify against another doctor in the same locale). My case was put on the "rocket docket" since I was planning on moving to another state - and settlement offers were made at various times (low-ball amounts). However, it still took two years before we were scheduled for trial (Discovery takes a long time in most medical cases). We settled the day before the trial date. My lawyer said that we might have gotten more had we gone to trial - or we may have gotten a lot less. I took the sure thing. I am hoping that your young friend lives many years but lawyers for the insurance company are known to try to stretch these cases out, hoping that the plaintiff is no longer able to testify.