Medical negligence case for delay in diagnosis settles

16 May 2021

When the doctors, nurses, surgeons and other medical workers we all depend on make mistakes, the consequences can sometimes be traumatic. Delayed medical treatment, especially in the case of serious illnesses like cancer and heart issues, can have lasting, avoidable consequences. However, you can’t necessarily claim for damages for every delayed diagnosis or treatment. Here’s how to know if you have a case.

What is a delay in treatment?

A delay in treatment is any situation where a patient isn’t provided the care they need to recover or improve their condition in a timely manner. While, generally, waiting a few extra days for an appointment will have no tangible impact on the outcome of a treatment, delaying treatment can sometimes impact the severity of an illness or even mean the difference between life and death.

According to a report from the Joint Commission, a global patient safety organisation, some of the most common reasons that treatment may be delayed include:

A delay getting the results of a diagnostic test
Breakdowns in communication and scheduling
“Human factors,” such as cognitive shortcuts taken by practitioners
Bad planning
An incorrect initial diagnosis
Understaffing at a treatment facility

In most cases, the potentially responsible party in a delay of treatment case will be the attending medical staff and hospital system. In some cases, however, a doctor may offer a correct diagnosis, only to see treatment held up because of issues with an insurance company. In these cases, the insurer could potentially be held liable for death or personal injury, assuming causation between the delay and damages suffered can be proven.

When is a medical professional liable for delay in treatment?

While situations in which a delay in treatment caused serious harm are all too common, establishing fault is far more difficult. While most medical professionals — whether a general practitioner, paramedic, nurse, orthopaedist, neurologist, gynecologist, surgeon, physiotherapist or chiropractor — try their best to correctly diagnose conditions and provide timely treatment, they can’t always be right. In every state, protections are in place to shield practitioners from some litigation. These give practitioners the peace of mind to take on patients dealing with challenging medical situations and also protect hospitals that are trying their best but have limited resources. However, these protections make the bar for receiving compensation incredibly high.

In general, a medical professional or hospital system is only liable for a delay in treatment if it caused serious injury and was the result of medical negligence or malpractice. Negligence is a failure to exercise the care that another in the same position would prudently exercise. The harm caused by negligence is considered to be due to carelessness, rather than a specific intent or determination to cause harm.

When committed by health professionals, negligence is a form of medical malpractice. Any time they are on the job, a medical practitioner has an assumed duty of care to their patients. If a doctor fails to provide what is accepted as the minimum standard of care and subsequently causes harm to the plaintiff, it is considered malpractice.

A medical malpractice claim is typically filed in civil courts. Potential damages include the cost of the immediate and long-term care required because of the injuries, lost wages and superannuation, and, in some cases, a lump sum “pain and suffering” payment for the emotional ordeal. In rare situations, a court can also award punitive damages for misconduct that is especially extreme.

Proving medical negligence

While showing that a delay in treatment was the result of a practitioner’s negligence is challenging on its own — especially without a deep knowledge of the medical field — the real hurdle is often establishing causation. Causation means that there’s a direct connection between the delay in treatment and the patient’s worsened condition. If, for example, a patient is delayed treatment for cancer that was already terminal, then proving causation would be difficult.

One key way that courts establish medical malpractice and causation is by relying on expert testimony. Testimony typically comes from another medical expert, who can establish the ways that a practitioner may have fallen short of their duty of care. In addition, testimony can establish how this breach, in this case, delayed treatment, was directly correlated with the victim’s plight. An established medical malpractice solicitor will usually be able to draw from a long list of expert witnesses to assist the case.

To bolster your case, you should also be sure to keep a record of all of your medical appointments and, if possible, the conversations between you and your doctors. This will make it easier to establish a clear timeline that proves there was an unnecessary delay — the first step toward a successful settlement. This information can also be used if a doctor gave you a misdiagnosis or if a hospital system was incapable of booking you an appointment for an extended period of time. Both could be an example of negligent delay.

Overall, a great way to ensure you’re checking all the right boxes necessary to prove malpractice is to work with a medical negligence solicitor. An expert lawyer can review the specifics of your case and determine if the delayed treatment you experienced fits the legal definition of medical negligence or malpractice. From there, they can help you gather the evidence necessary to make your case, including expert testimony, and turn it all into persuasive arguments — whether you’re in mediation or at trial.

Our 'delay in treatment' cases

If you’re searching for a skilled legal team that can get justice for you and your family, look no further than Gerard Malouf & Partners. Our medical negligence solicitors have a track record of delivering favourable outcomes that lessen the burden of delayed treatment.

In one recent case, we assisted the wife of a deceased man get the peace of mind she needed. The woman’s late husband had gone to his general practitioner and detailed a history of feeling unwell, chest pains and tingling in his arms. The man underwent a number of tests — however, these tests did not include cardio enzyme tests. Upon receiving a cardio enzyme test from a different general practitioner, it became apparent that the man had already suffered a major heart attack. The general practitioner referred him urgently to the hospital, where further tests revealed a severe left main bifurcation stenosis and proximal stenosis with a severe left ventricle dysfunction and echocardiography with an ejection fracture of approximately 30%. Sadly, a day after being discharged, the Deceased developed ventricular arrhythmia and passed away. Distraught, his widow turned to GMP to help.

With the assistance of highly regarded medical experts, our team was able to develop a strong medical negligence case against the Deceased’s general practitioner on the basis that the delay in diagnosis of several days significantly increased the damage to the Deceased’s heart and reduced his prospects of survival. Our solicitor was able to establish that the general practitioner had failed in their duty of care because they hadn’t immediately ordered a cardio enzyme test — which is critical to diagnosing, assessing and treating an acute coronary syndrome. We also proceeded in a medical malpractice case against the Deceased’s cardiac surgeon, arguing that the decision to discharge him only two days post-surgery was too early and he would have survived had he been hospitalised when the arrhythmia occurred.

On the strength of the evidence presented, we were able to secure a substantial settlement for the Plaintiff of $1,025,000.00 for the psychological injuries caused by the negligent delay. Whilst no amount of money can ever make up for the incredible loss and injuries that the Plaintiff has endured, our client was exceptionally pleased with the result, and the professionalism and compassion she experienced from our team.

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