What constitutes delayed diagnosis?
A delayed diagnosis occurs when you learn that you have a condition that should have been found earlier, but was not. This may occur because:
- a symptom(s) is not taken seriously or is overlooked;
- incomplete evaluation of the patient;
- a report is not followed up on;
- improper or delayed testing;
- improper or delayed referral of the patient, etc.
How did the pandemic contribute to delayed diagnosis cases?
The COVID-19 pandemic impacted healthcare globally. One example of the collateral damage is the increased risk in diagnostic errors.
Since the onset of the pandemic, efforts to avoid spreading the virus and overtaxing health systems have demanded a prioritization of treatment. Such prioritization effected access to non-emergency appointments and referrals, and shaped treatment planning and scheduling.
Whilst the pandemic was rampant, patients who sought medical care for respiratory symptoms were likely to be considered “under investigation” for COVID-19. The time involved in waiting for test results, for symptoms to resolve, and isolation of the patient could contribute to diagnostic delay of non-COVID conditions.
Ultimately, the ramifications of the pandemic, including the interruptions in delivery of non-pandemic medical services, are yet to be fully understood.
How does delayed testing and laboratory delays contribute to delayed diagnosis?
There are several processes involved in laboratory testing, including order placement, specimen collection, transportation to the laboratory, accessioning in the laboratory, centrifugation, aliquoting, additional pre-analytic steps if necessary, transport times within and between laboratories, analysis time, the time after completion of analysis until result verification, and the time it takes for the clinical team to be informed of the result. Turnaround time (“TAT”) refers to the time elapsed between these pre-examination, examination, and post-examination laboratory processes.
A delayed or slower TAT can cause treatment delays, an increased length of stay in the emergency department or hospital, an increase in requests, which in turn results in potential duplication of the test, and an increase in the workload in the laboratory. A delayed response to a cancer screening study or a lost biopsy report are examples of delayed testing and laboratory delays that could contribute to diagnostic errors.
Is delayed diagnosis difficult to prove?
Unlike cases where a doctor operates on the wrong limb or a surgical instrument is left inside the body cavity following surgery, delayed diagnosis cases can be more nuanced because the conduct giving rise to the claim is not always obvious.
In a typical medical malpractice case, causation is determined based on the following question: Did the substandard medical care cause the bad outcome?
In delayed diagnosis cases, the Plaintiff must prove that, more likely than not, there would have been a better outcome had the diagnosis been made in a more timely manner based on the evidence. Further questions to consider when establishing causation for a delayed diagnosis are:
- Was the delay a cause of the ultimate outcome?
- Is there a link between the substandard care provided by the medical provider and the delay?
- How did the medical care provider breach or fall below the standard?
In the recent case of The Estate of Mary Fleury et al v. Olayiwola A. Kassim, 2022 ONSC 2464, Ms. Fleury suffered from an appendicitis in 2011. Her appendix was removed and was sent to the pathology department of West Parry Sound Health Centre in Parry Sound, Ontario. Dr. Kassim, pathologist, examined the samples and made no note or report of any malignancy.
Four years later, Ms. Fleury complained of bloating and pain on the right side of her abdomen. She underwent a laparoscopy, and during the operation, the surgeon noticed evidence suggestive of cancer in Ms. Fleury’s abdomen. After further testing, it was confirmed that Ms. Fleury had metastatic adenocarcinoma of the appendix. She died from cancer-related complications just over a year later, at the age of 45.
The Court concluded that Dr. Kassim did not meet the requisite standard of care when he examined Ms. Fleury’s appendiceal samples in 2011, and failed to identify and diagnose cancer. The Court found that Dr. Kassim did not examine Ms. Fleury’s slides with the care and expertise expected of a normal, prudent anatomic pathologist with the same level of experience and standing.
The Court further found that had Ms. Fleury been properly diagnosed, she would likely still be alive. The Court determined that if Ms. Fleury had been properly diagnosed in 2011, she would have received definitive treatment for appendiceal cancer and reduced her five-year risk of recurrence to less than 30 percent.
The Court was ultimately satisfied that the Plaintiffs were able to establish causation between Dr. Kassim’s negligence and Ms. Fleury’s death, and her family was entitled to damages. (Source: Canadian Lawyer).
What should someone do if they feel their diagnosis was delayed and caused further harm?
If you find out a doctor missed a test, imaging report, or symptom that should have led to more investigation, you should contact a lawyer as soon as you have reason to believe that there may have been negligence. There is generally a two-year time limit to sue from when you discovered that you had a claim.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one believes that you are a victim of medical malpractice or negligence, reach out to a medical malpractice lawyer to understand if you too have a claim. Please contact us at Bogoroch & Associates LLP for a free consultation.
