Osborne & Francis: Exploring Medical Misdiagnosis Part 2 on Coffee With Q

Hello and welcome everyone to another episode of Coffee with Q. I'm Renee Perah, your host and legal news reporter. Coffee with Q is dedicated to helping consumers find justice. Today we have the pleasure of speaking with Joe Osborne, a seasoned and accomplished medical malpractice trial lawyer with extensive experience in advocating for patients' rights. Today's show will be focused on understanding medical errors and misdiagnosis when dealing with healthcare facilities and medical professionals. Joe, our guest, is an expert in this area of law, and I'd like to welcome him. Good to see you, Joe.

Thank you for having me.

Okay, so I guess what is a misdiagnosis and how is it different from other types of medical errors?

It's actually a great question. A misdiagnosis in a medical malpractice setting typically is a wrong conclusion or a wrong diagnosis despite, despite strong evidence otherwise. Now, what do I mean by that? A diagnosis in the medical setting often involves really 2 things. You have both your subjective and objective components of a diagnosis. which oftentimes together form the basis of how the doctors make treatment decisions. What do I mean by that? The subjective information that a doctor may have would include, for instance, a clinical examination. When they, you know, feel your neck or they listen to your heart or they check your groin or they do a reflex test. Those are what are the subjective findings of a clinical evaluation. As— and just those are just a few examples. And then you have your objective information. That is information like, what does your blood work show? What do your X-rays show? What do other laboratory testing show? And then the subjective information of the clinical exam and the objective information of the testing is taken together to form what's called the differential diagnosis. It's a very, very common tool in medicine where, based upon the information provided on the clinical exam, based upon the information provided on the objective evidence. In the differential, what is potentially the most dangerous diagnosis for this patient? And you start with the most dangerous in your mind that's potentially relevant as a physician, and you work your way down. And you exclude those things that you think are most impactful to the patient. And in a misdiagnosis, at least in this type of setting, oftentimes it's where physicians either don't appreciate overlook or misinterpret either the clinical examination and/or the objective information that is provided on that patient where something is drastically missed. As an example, let's say there are certain enzyme testings that you can look at in the laboratory to suggest somebody might be at risk for a heart attack. If those heart attack enzymes are extremely elevated and someone is having chest pain, And the doctor doesn't appreciate that those enzymes are significantly high or misses the fact that they are high and tells the patient his chest pain is likely due to heartburn and sends him home. Then that patient has a heart attack. That is a significant misdiagnosis because the cardiac enzymes are typically a big, big red flag of an impending problem. That's just an example of the information that the physicians use to try to come to the right diagnosis. but how sometimes a misdiagnosis can occur.

What are some common causes of misdiagnosis in medical malpractice?

So, so some of the most common causes can be, uh, you know, one of the things I've been doing for a very long time, of course, has been doing medical malpractice. Just as a side note, I defended doctors and hospitals, you know, going back probably 7, 8 years in the beginning of my career in malpractice cases. And have been representing patients and their families, you know, now for probably 27, 28 years. So I have almost 35 years of experience handling medical malpractice cases from both sides. And the range of case— the range of potential cases that you can imagine involving the human body and the various medical conditions that we see goes— it's enormous. We have literally looked at thousands and thousands and thousands of potential medical malpractice cases. Some of the ones that we see that tend to be repeats are, you know, on clinical exam or on mammograms, either palpable lumps in the breast that a clinician either misses on clinical exam or the mammogram fails to identify— oh, I shouldn't say that. The mammogram does identify the lump, but the radiologist misses it. So lumps in the— in lumps in or around breast tissue are something that are extremely important to identify and diagnose as quickly as possible. The survival statistics with breast cancer are very clear. Timely diagnosis matters, and the earlier you catch it, the greater chance of survival. So when those types of things are missed, they can be catastrophic for people. Heart rhythm irregularities seen in stress tests or on other cardiac evaluations, that when a heart is not working appropriately, it's incredibly important for doctors to identify that and get patients into hospitals. And whether it's on a stress test or otherwise, I've had many cases where poor folks have walked out of doctors' hospitals and hospital— or hospitals and have been dead in 72 hours because things were missed either on EKGs or echoes or on stress tests. In a dermatology setting, we've seen in the last 5 to 10 years, as you can imagine, the failure to appreciate skin lesions. Right, makes sense. Appreciate skin lesions that, you know, melanoma is a deadly, deadly disease that has, again, it can be impacted by early diagnosis and treatment. But those are 3 examples of things we typically see.

What are the legal implications for a healthcare provider or medical professional when a misdiagnosis actually occurs?

So the legal implications are that if the misdiagnosis rises to a deviation from the standard of care, and that's important, that is the definition of a medical malpractice negligence claim. who has nothing to do with the case, look at the study and say, did Dr. Jones miss this lump on the mammogram? And he says, it's clear, clear as day. I don't know how he missed it. Any radiologist should have seen that. This is a deviation from the standard of care. Then that gets us home in terms of saying, okay, this is just not a mistake. This is just not Monday morning quarterbacking. This is just not a, a, this is just not a process of the disease process. But we have a clear deviation from the standard of care here that forms the basis of a potential malpractice claim. And, um, those— that's, that's the implication. Those are the ultimate consequences for the provider. Now, a key component to that is once we prove a deviation from the standard of care, we have to be able to prove what we call causation, and that it actually made a difference in the patient's outcome. So for instance, it— in my, my example, just stick to the same example. If a study or— I'm sorry, if a chest X-ray was done and there's a suspicious finding there and months and months and months go by until lung cancer is diagnosed, then there's a strong argument that an earlier detection diagnosis probably would've made a difference in the outcome. Under the same scenario, if If the chest X-ray showed the lesion, but 2 weeks later the patient was diagnosed otherwise, you still may have a deviation from the standard of care. But did it really impact the overall outcome? And that causation and impact analysis becomes just as important as whether or not something was done wrong, because without the impact and the causation, the malpractice in a vacuum doesn't do us any good from a legal standpoint. So from a legal— from a healthcare provider's perspective, you know, when we see something that's, you know, a bad outcome, something that went wrong, there's questions about that, we really have to look at those 2 components. Was there a deviation from the standard of care? And is there causation, meaning did that malpractice ultimately cause or change the outcome of a patient's course?

What rights do patients have if they believe they've been misdiagnosed?

Well, they have a lot of rights. And one of the things I would highly suggest for any patient is be proactive in your care. There is nothing more important in your care than you. And especially in, you know, if you're in a big health system, if you have significant medical problems, which you see doctors all the time, be proactive, ask questions. Get second opinions. Second opinions oftentimes are the heartbeat of making sure that your care, your care and treatment is appropriate. As incredibly as it sounds, even in today's world, you know, many doctors have different opinions about things, even faced with very, very similar information. And we strongly suggest that people always go for second opinions. You know, if your dermatologist says— when you have a skin lesion you're worried about and your dermatologist says, don't worry about it, it looks fine to me, Make an appointment with another dermatologist. Have somebody the following week look at it to be sure that that information is right or that that belief is correct. Because if that physician turns out to be wrong and you develop a melanoma, that decision could ultimately cost your life. So be proactive about second opinions. Be proactive about the need for follow-up testing. If you're told you need follow-up testing or if you need follow-up labs, Go get them right away. Make sure there's no delay in terms of getting additional recommendations complied with from a testing standpoint. Make sure you get your yearly screening, whether it's colonoscopies or mammograms or whatnot. But there are lots of things that can go wrong in medicine, but be the captain of your own ship and make sure that you're on top of the things that are needed for your care.

What steps What steps can patients take to reduce the risk of being misdiagnosed? And misdiagnosed, when it's missed, it's missed. So it's hard to evaluate it. You've talked about being proactive and getting second opinions. Are there some clear signs that could help people say, you know what, I need to look at this?

Yeah, and that's— those are great questions. And I would answer that question by I think I'm saying a lot of the same things I said to the last question, or my response to the last question, which is be proactive, get second opinions, stay on top of follow-up testing, stay on top of yearly screening, and communicate with your healthcare providers, I think is the other thing I would add. A lot of people have what they call white coat fear, or they get white coat hypertension because they get nervous being in doctors' offices, or they get scared that they're going to hear bad news. But communication with your providers is really important. There are studies that show that people that are in direct communication with their doctors and ask the right questions oftentimes get better care and treatment. It's just the way it is. It should be a collaboration. It should be a collaboration with your physician and your healthcare providers, not somebody just sitting there on a stool and listening to advice. It really— you really need to be a collaborative participant in your care in order to make sure that, you know, things are, things are what they need to be. And if there's any apprehension about, you know, was this malpractice or was the diagnosis missed or was there an error, the best way to look at it is basically a lot of things we've been talking about this morning. And that is, if a doctor did something that didn't lead to any consequence for me. So things happen in hospitals all the time. Nurse forgot to take my vitals. I got the wrong dose of medication. You know, they— I was supposed to be checked neurologically twice last night and nobody came around. They ordered a neurology consult for me and, you know, the neurologist, it's been 2 days, he hasn't been here. Those are the kind of things that shouldn't happen. And they potentially constitute medical errors. But ask the patient— should ask themselves, did it lead to any consequences? Meaning, did anything bad happen to me as a result of that? Yeah, maybe I was uncomfortable. Yeah, maybe it angered me. Yeah, my emotional response wasn't good. Or, you know, maybe it led to some problem. I got sick, but now I'm better. If what someone perceives to be an error doesn't ultimately lead to any real permanent injury or outcome, then those are not the type of things that really, you know, from a medical malpractice standpoint, we can do anything about. Doesn't excuse them, but they're really not things that somebody probably should take to the next level and say, I should have someone look at this. However, the reverse is true. If something like that happens, the neurologist doesn't come for 2 nights and you have a stroke in the hospital because you did not get an evaluation, and now you're in a rehab facility and you're paralyzed on the left side of your body, that's something we need to talk about. And that's, that's where someone should come see us. So Where what is perceived to be an error or malpractice or a deviation from the standard of care leads to some significant ultimate outcome, those are the things you need to consult with an attorney like us ASAP.

Well, that's that's really interesting. Something comes to mind. You reviewed thousands of cases, you know, over your many years. How often do people bring in their own advocate, uh, you know, they bring a friend to, you know, any of their medical appointments, uh, when they meet with healthcare professionals. Is that a common occurrence, or is it people go solo?

Um, it's most of the time people, you know, usually it's family members. Um, usually it's family members who, especially with elderly patients, um, you know, whether it's sons and daughters or brothers and sisters, we typically see We simply see that kind of support in the care and support in whatever medical fight that patient may be dealing with, and they become very important resources for us in the cases. Medical records don't always tell the whole story. Mrs. Jones may come to us and say, I really complained to the doctor that day that I couldn't move my left arm, and we get the medical records, it's not in there. But The daughter was there at the visit and said, that's why we were there. Not only did my mom tell the doctor that, but I told the doctor that. Here's the specificity of which we told the doctor these complaints. And then we go from it not being in the medical records and therefore it didn't happen to now not only support and corroboration, but a telling story as to why maybe the doctor didn't pay attention to these complaints. Not only did maybe he not appreciate it, he didn't record it. And we have great corroboration and testimony that this was something that was brought directly to the doctor's attention. And if he had appreciated it, maybe the heart attack wouldn't have happened, you know, a couple days later.

Well, in an example like that, it just shows how important, uh, to always bring someone that you trust, uh, to these, um, you know, medical appointments. Um, they might hear something that you didn't hear or you didn't see, and the doctor, I Also didn't hear or you didn't see, right? To find out more about Joe Osborne, Florida trial lawyer with Osborne and Francis, you can visit www.realtoughlawyers.com, or Joe always takes his calls. You can reach him at 561-301-3292. Again, thank you, Joe, for coming on the show. Your experience with us today is always awesome. It was certainly helpful for me, and I'm sure for our audience as well.

Thank you very much for having me.