Medical Malpractice Failure to properly diagnose actionable?

Hey guys, this is about my dad who is 68. He began having breathing issues and for the longest time we assumed it was some kind of chronic pnumonia. At one point he broke a rib from coughing so hard and he ended up going to the hospital for 10 days. Also his lung deflated and had to be reinflated. That isn't the issue but that's what happened. His lungs and breathing were under scrutiny or so you would think.

Now, about 8 months later, he still has a terrible cough. And this has been going on for 2 years now. And yes, he's been to the ER, a pulmonologist (lung specialist), his regular doctor at the VA, and urgent care. All of those more than once during these past 2 years and none of them have been able to diagnose what I now believe to be CHF, congestive heart failure. It's a bit tricky to the layperson because it's a heart problem that actually creates lung problems. The buildup of fluid in his lungs. Now, I didn't know that. He didn't know that. But I would make the case that the doctors should know that. They are doctors after all.

So could the case be made that due to the gross negligence and/or incompetence of these doctors (who we suspect are kind of complacent and uncaring...and don't really want to think too hard.) have facilitated his prolonged suffering, thereby causing pain and suffering. If you can see where I'm going with that. Is there a case to be made for pain and suffering or some kind of medical malpractice or negligence?

Don't take this to mean that I'm anti-doctor. I'm not. But when they aren't solving the problem and seem negligent, it seems like litigation may be the only way to adjust that attitude. Otherwise they'll just keep getting away with it and keep causing more and more suffering and possibly even worse down the line. So does anybody think there's a legitimate case here?

Jackson D said:

Hey guys, this is about my dad who is 68. He began having breathing issues and for the longest time we assumed it was some kind of chronic pnumonia. At one point he broke a rib from coughing so hard and he ended up going to the hospital for 10 days. Also his lung deflated and had to be reinflated. That isn't the issue but that's what happened. His lungs and breathing were under scrutiny or so you would think.

Now, about 8 months later, he still has a terrible cough. And this has been going on for 2 years now. And yes, he's been to the ER, a pulmonologist (lung specialist), his regular doctor at the VA, and urgent care. All of those more than once during these past 2 years and none of them have been able to diagnose what I now believe to be CHF, congestive heart failure. It's a bit tricky to the layperson because it's a heart problem that actually creates lung problems. The buildup of fluid in his lungs. Now, I didn't know that. He didn't know that. But I would make the case that the doctors should know that. They are doctors after all.

So could the case be made that due to the gross negligence and/or incompetence of these doctors (who we suspect are kind of complacent and uncaring...and don't really want to think too hard.) have facilitated his prolonged suffering, thereby causing pain and suffering. If you can see where I'm going with that. Is there a case to be made for pain and suffering or some kind of medical malpractice or negligence?

Don't take this to mean that I'm anti-doctor. I'm not. But when they aren't solving the problem and seem negligent, it seems like litigation may be the only way to adjust that attitude. Otherwise they'll just keep getting away with it and keep causing more and more suffering and possibly even worse down the line. So does anybody think there's a legitimate case here?

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Please clarify the bolded. When you say "what I now believe to be CHF" is that your own Dx of your father or has an actual Doctor Dx'ed him with CHF? Your wording leaves doubt that he was professionally diagnosed.

justblue said:

Please clarify the bolded. When you say "what I now believe to be CHF" is that your own Dx of your father or has an actual Doctor Dx'ed him with CHF? Your wording leaves doubt that he was professionally diagnosed.

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He was not professionally diagnosed with it. Could you indulge me with the hypothetical that he gets the diagnosis of CHF from an actual doctor? Without that of course I would not have any hope to litigate.

Yeah without a diagnosis this is mute, and oh by the way. The doctors work hand and hand with the insurance companies to protect them from massive ligation. You would need to talk with a personal injury/ malpractice attorney to see if you actually have a case. I would imagine if what you said is true then you will be able to find one.
Good Luck.

Well sure. We'll see what the doctors say in a day or two, whenever my dad builds up the energy to drive himself to urgent care. Maybe I'm wrong but maybe I'm right. We know that his dad, my grandpa, had CHF. So I mean, the chances seem pretty high. It would explain why his condition hasn't improved in 2 years: He was never diagnosed right. I think an informed reasonable person would draw the same conclusion that I am.

That said I should also mention that he did a huge like 50 question questioner online to help him get a diagnosis. That may not mean anything legally, but it turned us onto the idea that it is CHF. Then I did my own research on it. All these things combined and I have to lean towards him having CHF.

Also yeah he doesn't have the diagnosis, but isn't that the problem? Why should we have to figure this out on our own? Even if I am wrong, don't the doctors bear any liability in reaching a diagnosis? Or can they just shrug and say "i guess it's pnumonia. Here take these anti-biotics." forever with impunity?

Jackson D said:

Well sure. We'll see what the doctors say in a day or two, whenever my dad builds up the energy to drive himself to urgent care. Maybe I'm wrong but maybe I'm right. We know that his dad, my grandpa, had CHF. So I mean, the chances seem pretty high. It would explain why his condition hasn't improved in 2 years: He was never diagnosed right. I think an informed reasonable person would draw the same conclusion that I am.

That said I should also mention that he did a huge like 50 question questioner online to help him get a diagnosis. That may not mean anything legally, but it turned us onto the idea that it is CHF. Then I did my own research on it. All these things combined and I have to lean towards him having CHF.

Also yeah he doesn't have the diagnosis, but isn't that the problem? Why should we have to figure this out on our own? Even if I am wrong, don't the doctors bear any liability in reaching a diagnosis? Or can they just shrug and say "i guess it's pnumonia. Here take these anti-biotics." forever with impunity?

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Most of their liability comes from malpractice as in procedures actually performed and mistakes actually made. For example, he has heart surgery the doctor leaves a device or instrument in the cavity that is not removed in the process. This causes injury and future pain and suffering. I have not seen any diagnosis cases but that does not mean that they do not exist.

For malpractice, there has to be a duty and a breach of that duty of care which would be owed to your father. None of what you have posted has crossed that threshold.

Redemptionman said:

Most of their liability comes from malpractice as in procedures actually performed and mistakes actually made. For example, he has heart surgery the doctor leaves a device or instrument in the cavity that is not removed in the process. This causes injury and future pain and suffering. I have not seen any diagnosis cases but that does not mean that they do not exist.

For malpractice, there has to be a duty and a breach of that duty of care which would be owed to your father. None of what you have posted has crossed that threshold.

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Well, maybe you're right. So if a patient comes in, the doctor misdiagnoses him, sends him out with the wrong treatment...that can just go on and on legally speaking? Seems odd. I guess that would be like, doctors just don't have to be right all the time. They can just do their best and if that isn't good enough then tough. Wouldn't that defeat the purpose of like, going to medical school and getting your degree? If in the end you aren't even an authority in your field and your patients will suffer as a direct result? I mean it's not like this is a very very hard to diagnose thing. It has somewhat obvious indicators. Any doctor worth his salt should be able to figure out what this is.

Speaking of authorities, for some reason I had the idea that you guys were pretty good at this law stuff. I guess I should have just googled it? Though perhaps it wouldn't have been as interesting or give me the ability to vent.

Can You Sue a Doctor for the Wrong Diagnosis? - FindLaw

Jackson D said:

Well, maybe you're right. So if a patient comes in, the doctor misdiagnoses him, sends him out with the wrong treatment...that can just go on and on legally speaking? Seems odd. I guess that would be like, doctors just don't have to be right all the time. They can just do their best and if that isn't good enough then tough. Wouldn't that defeat the purpose of like, going to medical school and getting your degree? If in the end you aren't even an authority in your field and your patients will suffer as a direct result? I mean it's not like this is a very very hard to diagnose thing. It has somewhat obvious indicators. Any doctor worth his salt should be able to figure out what this is.

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That is a rather myopic view of things. First off doctors make misdiagnoses all the time. It is up to the patient to find the best doctor for them in a given situation. CHF is a chronic terminal condition comes with age. I have had relatives die from it. Not much can be done, but again if you feel you have a case then call around to some local personal injury attorneys and shop it.

I am sure you will find an attorney to take it, prevailing in it will be a different task. Good Luck.

What makes you think it's CHF?

Medicine is not an exact science and every individual human body reacts differently. A lot of times, diagnosing is a matter of ruling things out, not in. If you want to pursue this, your father would have to have his medical records reviewed by a malpractice attorney, whose experts would have to agree not only that your father has congestive heart failure (or whatever it turns out to be) but that the failure to diagnose it sooner breeched the standard of care expected in your area and that an earlier diagnosis would have made a significant difference to your father's condition. Just the records review can run you up to $5000 with no guarantee that the expert will find in your favor.

Jackson D said:

Speaking of authorities, for some reason I had the idea that you guys were pretty good at this law stuff. I guess I should have just googled it? Though perhaps it wouldn't have been as interesting or give me the ability to vent.

Can You Sue a Doctor for the Wrong Diagnosis? - FindLaw

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This site is excellent "at this law stuff". You are not presenting a valid legal situation. You are playing doctor and assuming that his doctors, apparently all of them, have misdiagnosed your father. No one here can reasonably guide your father (you have no standing to do anything except support your Dad) based on the conjecture you have posted on this site.

Redemptionman said:

Yeah without a diagnosis this is mute, and oh by the way.

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"moot". The word is "moot".

My great-grandmother was listed as "deaf mute" on the census, meaning she couldn't hear or talk.

If the doctors came to reasonable diagnosis with the information they had available then they did just fine.
Not every diagnosis is correct. Sometimes it takes some troubleshooting to sort it out.

Your challenge here is to prove the doctors did something they should not have, or failed to do something they should have. It is a fairly difficult hurdle to clear.

If your father hasn't been professionally diagnosed with what you think he has then you have nothing to start with.

If the diagnosis he did get was reasonable, even if wrong, you still have nothing

mightymoose said:

If the doctors came to reasonable diagnosis with the information they had available then they did just fine.
Not every diagnosis is correct. Sometimes it takes some troubleshooting to sort it out.

Your challenge here is to prove the doctors did something they should not have, or failed to do something they should have. It is a fairly difficult hurdle to clear.

If your father hasn't been professionally diagnosed with what you think he has then you have nothing to start with.

If the diagnosis he did get was reasonable, even if wrong, you still have nothing

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Idly curious here. What disgnosis has your father been treated under before now? Has your father ever gotten a diagnosis of COPD? Is he a smoker? I know several people who are COPD cases who also, they are told, have CHF due to the strain placed upon their heart by having breathing problems over an extended period. CHF has been described to me as a sort of gradual weakening of the heart muscle which does cause further breathing problems but can definitely be brought on and exacerbated by breathing issues. It isn't a totally different thing which should be picked up on and identified separately which could be medicated differently from his breathing issues which would result in a total cure.