Misdiagnosis Legal Dispute Regarding “Decreased Odds of Survival”

The basic root of most Illinois medical malpractice lawsuits involves claims of civil negligence. When filing a lawsuit alleging negligence in any context, including medical errors, the plaintiff must prove four things:

1) The defendant owed a duty to the plaintiff 2) That duty was breached by the plaintiff 3) The breach was a cause of damage to the plaintiff 4) There was actual harm to the plaintiff
Any Chicago medical malpractice lawyer will explain that the real contentious issues in the vast majority of cases are the second and third elements: whether there was a breach and whether it caused certain harm to the plaintiff. The duty element virtually always exists, because medical staff members always owe a duty to their patients. Similarly, the last element, harm, is also rarely in dispute, because the victim would not consider going ahead with a lawsuit if there was no actual harm involved. Instead, the real contentious issues are those around whether the doctor did anything wrong in the first place (breach) and whether that conduct specifically caused the complained of harm (cause).

There are times when a breach and cause are undeniable. However, in some circumstances the law can be a bit tricky with these issues. For example, the Star Tribune reported this week on a new medical malpractice lawsuit involving a misdiagnosis of cancer in a young girl. At issue is whether the misdiagnosis actually caused harm for the child. Obviously, the doctor did not create the cancer, but her conduct in not diagnosing it in a timely fashion did result in delay in treatment which itself is a separate harm. In the girl’s case there was a yearlong delay in diagnosis. As a result, the girl’s family argues that her chances of survival went from 60% to 40%. However, at the moment, the girl’s conditioned has deteriorated and she has been given less than a 5% chance of survival.

In the girl’s state the law holds that a medical malpractice case in these circumstances can only proceed if the delay causes survival to shift from likely to unlikely. An appellate court in the state recently upheld the girl’s case, rightly noting the drop from 60% to 40% fits within the definition of likely to unlikely. A trial court had dismissed the case, claiming that it represented an impermissible “reduced chance of survival” case. However, the appellate court reversed, finding that it was in fact an “improbable survival” claim which is allowed in the state.

In Illinois the rule is a bit more ambiguous. Specifically, courts here have found that a case can proceed if “the defendant’s failure to render a timely diagnosis more probably than not comprised the effectiveness of treatment received or increased the risk of harm to the plaintiff.” In this way there are not necessarily cut-off percentages or black-and-white rules. Instead, in these situations local medical malpractice attorneys are required to ague generally about whether the delay in diagnosis compromised the effectiveness of the treatment or increased risk of harm
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