Legal Action

[lafounk2]

:unsure:Has anyone ever sued or ever thought of suing your doctors for not diagnosing (or misdiagnosing) your Wegener's sooner? I've been told by my GP and my gyno that I should have sued. How they explained it to me that 4 antibiotic was way too much and that after 1 round of AB that they should have referred my son to a specialist. Another thing is that Josh had chronic fatigue, low-grade fever and bloody nose for 3 months. What are your thoughts. Is it worth it? I've never sued anyone in my life so I don't know if even I have a case. I know WG is tricky to diagnose especially because it's rare, but I get very angry thinking about those three months of undiagnosis and my persistence for the doctors to find something.

[Jack]

There is someone on the forum who has successfully brought a case, but I think there was more to it than just late diagnosis. The problem is that you have to prove that the doctor was negligent and not just that his knowledge did not cover the diagnosis of this disease. If you were referred to other specialists and they also failed to diagnose, it reinforces the doctors position that he was not being negligent and was doing his best with a disease that is notoriously difficult to pin down even for an expert.

I think that you could sum it up by saying that failure to diagnose is in itself is not negligent, but failing to take steps to try to diagnose would be.

[lafounk2]

Great point Jack. I agree that taking steps not to diagnose is very well put. I think they kept putting a bandaid over the major symptoms by prescribing antibiotic after antibiotic. One week for our vacation from hell (before Josh got diagnosed on vacation) I brought Josh back to the Peds twice within the week before because not only was Josh still having nosebleeds and pain but he was sleeping all the time and had a low-grade fever to boot. I think we went through a whole bottle of Advil in within 3 months.

[Sangye]

To prove malpractice, you have to prove that the doctor didn't follow standard of care procedures, and that the patient was harmed as a result. If I remember correctly Josh had mostly sinus symptoms for those 3 months. It isn't unusual for an otherwise healthy person to have a series of sinus infections or one that requires numerous types or rounds of antibiotics to treat. Sinus infections can cause fatigue, bloody nose and low-grade fevers. I recall you saying he had migratory joint pain at some point but I don't remember when that began. Even that can be caused by a chronic infection.

I think the doctors who said 4 abx in 3 months was too much are out of touch with their peers. I had many patients who'd been on far more than that. Holistic docs certainly consider it too much, but I don't think it's out of line with standard of care among MDs.

Three months with "just" sinus and joint issues is not an undue amount of time to diagnose something as sneaky as Wegs, and kidney involvement can occur extremely quickly and without warning, even in those who are being properly treated.

Let's assume they had diagnosed Wegs when he had just sinus symptoms. They would have put him on one of the milder immunosuppressants like imuran, and his Wegs could have easily progressed into kidney failure despite treatment. That happens all the time. So there is no guarantee that treating him a month earlier would have saved him from that.

I've had tons of complications that were absolutely caused by negligence and I could certainly sue. But I just don't see the point. If it's to punish the doctor, you can file a complaint with the state board instead. I have lawyers in the family and can tell you that lawsuits take huge amounts of energy--time, money, stress. I think there is a time and place for such lawsuits. Gwenllian was an example of one. I don't think Josh's case is so clear-cut.

Josh has a new kidney and his disease is under control. I'd rather see you go enjoy life and move forward.

[lafounk2]

Thanks Sangye, I am very uneducated when it comes to lawsuits as I have never sued or thought of suing anyone. What got me thinking about it was two doctors that I had seen for my own medical workup. It makes sense and I assumed it was out of reach but thought I would check. Thank you for the info Sangye.

[julia]

I would consult an attorney if you are in doubt.

[freakyschizogirl]

I think that you could sum it up by saying that failure to diagnose is in itself is not negligent, but failing to take steps to try to diagnose would be.

Thats very interesting, as most of you know i've had a 3 year uphill battle to diagnose my sinus limited wegs. I have seriously considered it, i havent sort legal advice yet but i am sorely tempted. As i feel my nose wouldnt be perforated now or collapsed had it been diagnosed even a year or 2 ago.

[JanW]

I think that Sangye hits the nail on the head the doc has to be negligent and it has to have harmed you. It's not clear what the outcome would have been had Josh been diagnosed sooner, so I think that you really have to weigh that. You can consult an attorney, but I would not if I were you.

[stikker]

I sounds like that would be another "battle". I am fighting enough right now. (the disease, getting the care I need, etc) I don't have enough energy for any more.
Just a thought. Would other doctors know that you sued?? Would they want to take you an as a patient? Can they refuse you?

[Sangye]

Those are excellent points, stikker. Other docs might very well know about the lawsuit because they could be called to give evidence or their professional opinion. Unless the doctor being sued is famous for being reckless and negligent, it could certainly make other docs feel uncomfortable and distant with you. They're human.

And yes, any doctor can refuse to take on a new patient or continue care if they feel they cannot do so objectively. If you're already under their care, they have to give you written notice, and in some states they have to provide names of other doctors who might take you on.

[drz]

There is someone on the forum who has successfully brought a case, but I think there was more to it than just late diagnosis. The problem is that you have to prove that the doctor was negligent and not just that his knowledge did not cover the diagnosis of this disease. If you were referred to other specialists and they also failed to diagnose, it reinforces the doctors position that he was not being negligent and was doing his best with a disease that is notoriously difficult to pin down even for an expert.

I think that you could sum it up by saying that failure to diagnose is in itself is not negligent, but failing to take steps to try to diagnose would be.

I think this sums it up very well. Failure to diagnose a rare disease would be hard to prevail in a legal battle, especially if the doctor did respond somehow based upon an erroneous diagnosis. I was given X-rays, told to get a biopsy but the doctors couldn't agree on who should do it, and given antibiotics to treat my "pneumonia". I lost most of my kidney function and hearing from not being correctly diagnosed and treated in time, but doubt I could ever win a malpractice case. I could never find the energy to pursue one anyway and i believe it would make it very hard to get on going medical care since most doctors wouldn't want to treat you as a patient.

[Sangye]

Even the best docs misdiagnose Wegs. When my flare began in early 2009 all my docs--even Dr Seo--thought it was nothing. I was given antibiotics and hospitalized three times and it was only at the end that Dr Seo realized it was Wegs.

[Jack]

I could never find the energy to pursue one anyway and i believe it would make it very hard to get on going medical care since most doctors wouldn't want to treat you as a patient.
I was in this situation when I was fitted with a faulty lens implant. I started legal action, but it all became very complicated with the supplier going into receivership and their insurers, based in America, contesting liability. I decided I would be happier if I just forgot about it. The operation to put things right cost me nothing and was no big deal.

[jola57]

A far better way to get your point of misdiagnosis across is to have a review of your case by the College of Physicians and Surgeons of your state. Please contact the one in your state and talk to someone about how they would like to handle your case. Do not tell them that you would like to sue or bring a malpractice suit, but that you want to be sure that this does not happen to anyone again and you would like to have the College send out a Case Review warning to Family, Emergency and any other doctor they feel should be warned of the symptoms and misdiagnosis of Wegener's as well as the adverse and lethat results misdiagnosis has on patients.

[Sangye]

That sounds great, Jolanta. Do you know if it's just a Canadian thing? I've never heard of it.

[jola57]

No, every province and state has a physician governing body. If a patient brings gross (big) misdiagnosis and requests a review of his/her case, they are obligated to do it. If they find that even though the physician followed the prescribed steps and the patient was still misdiagnosed, the governing body may then prepare a new diagnosis flow chart which includes more symptoms. As with everything, it is up to the patient to follow up and talk to the governing body and insist that something be done to stop the gross misdiagnosis which results in pain and suffering, loss of normal life and even loss of life.

[Sangye]

LOL So it's a Canadian thing!

[drz]

No, every province and state has a physician governing body. If a patient brings gross (big) misdiagnosis and requests a review of his/her case, they are obligated to do it. If they find that even though the physician followed the prescribed steps and the patient was still misdiagnosed, the governing body may then prepare a new diagnosis flow chart which includes more symptoms. As with everything, it is up to the patient to follow up and talk to the governing body and insist that something be done to stop the gross misdiagnosis which results in pain and suffering, loss of normal life and even loss of life.

Now this is something that could be done to greatly improve health care in the USA! The closest thing we have is evidence based treatment research which is some times used by insurance companies to deny payment for a certain treatment procedure.

[vdub]

Personally, I wouldn't and haven't ever considered it... Just not my thing.

I have total faith that my doctors have done the very best they could and continue to do so. WG is very rare and not exactly something that pops up as a diagnosis. I read somewhere that the typical diagnosis for WG takes between 18 and 24 months. In my case, it took almost exactly 2 years for a diagnosis and within that 2 years a lot happened.

I have the diesease (at least, that's the current diagnosis), it's nobody's fault, and I have to learn to live it. That's not to say that I like it or like to live with it or that my life won't be shortened, but I'm certainly not going to make a legal issue about it.... But that's just me....

[Tim Roberts]

I have read all the responses regarding this post and I agree this would be a very difficult battle to win. As an administrator within a larger court jurisdiction in Minnesota, we normally have a couple of medical malpractice cases filed and tried to juries each year. The damage portion of the case is usually easily proved but most importantly you need to prove negligence on the part of the medical folks which is usually a doctor but sometimes a nurse. Knowing negligence and proving it are two entirely different things. I would estimate that about 80 to 90 percent of these cases result in no award to the plaintiff as they find no negligence on the part of the doctor. Medical malpractice cases are also very expensive to take on as it involves deposing and aquiring testimony of a number of medical experts and they don't do this for nothing. In the end, any attorney who is willing to take this on needs to be very good and very specialized in this area to have a successful outcome for the party. I don't want to discourage anyone from pursuing this but rather my intention is to simply make everyone aware of the difficulty and expense involved with this. I hope this helps.

[Sangye]

Great info, Tim--thanks so much for contributing that!

[Jack]

That is exactly as I understand the position to be. Doctors are human beings and not expected to be Super Human. Their inability to diagnose a very rare disease with diverse symptoms is not in itself proof of negligence, rather it is almost to be expected.

[aewaustin]

I worked for a law firm for three years I would not wish a lawsuit on anyone. A lawsuit is the most negative draining life experience from what I have seen... Would never pursue one unless it was unavoidable.