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Failure to Diagnose Blood Clot Malpractice?

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who wanted to know if the following situation presented a malpractice case.

He went to the Emergency Room complaining of pain in his legs. He was concerned that he might have a blood clot since he had a history of clotting. The ER ran some tests and reported that he had some blood clotting signs, but the CT scan came back normal. The doctor who sent him home told him to return to the emergency room if he had continuing problems. Five days later, he went to another emergency room and found that he did have a blood clot in the lung, called a pulmonary embolism.

He wanted to know if he could sue the first emergency room for sending him home.

When you have a fact situation of the type just described, where the patient goes to a doctor, some tests are run, the tests do not conclusively show a severe condition. Is it malpractice to send the patient home?

As you might expect, proving that the first doctor made a mistake could be very difficult.

First, you have to show that circumstances remained the same for all of those five days before the patient went to another doctor.

Second, you’d have to show that whatever disease condition eventually presented itself to the second doctor, was the disease the patient had when he left the first doctor and was sent home.

These two questions have to be answered with admissible evidence.

If you are going to go into court, you have to present evidence. What people call proof.

You have to prove your case. You can’t simply make an allegation that the first doctor made a mistake.

And, if you sue, you have the burden of proving your case by the preponderance of the evidence.

So, the case as described by the caller is somewhat problematic.

It doesn’t mean it would be impossible to prove that the first doctor dropped the ball, but it may be complicated to prove.

On the other hand, what if the first doctor misread a CT scan?

In other words, suppose that the first doctor did follow proper medical protocol and did do a CT scan and reported to the patient that the imaging showed no clotting. But, on further review by another doctor, examining the same CT scan images a blood clot is visible.

Now you might have a case. Why? Because you now have evidence that you can present to a jury showing “look ladies and gentlemen of the jury, here is an image showing that the first doctor sent the patient away when there is clearly a blood clot present.”

But, you need to look at a third component: was the patient harmed by the delay in diagnosis?

In the caller’s instance, the patient was not harmed. He went home, his symptoms worsened, he sought further treatment as instructed, the clot was addressed with drugs that dissolved the clot. The patient was just fine.

Because of the need to evaluate evidence, most attorneys will request that the caller gather their medical records and bring them in when they receive a call like this one. But, they will only do so if the patient is harmed.

Why? Because if the patient is not harmed, it makes no difference if the first doctor made a mistake. The old adage “no harm, no foul” comes into play. It is not a technical legal rule. But, it is a truism that applies in such situations.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”