Trial Magazine

In medical negligence cases, most attorneys think that medical records will make or break a case. However, other items from the defendant may end up being the lynchpin. Under the Federal Rules of Civil Procedure and state corollaries, remember that the scope of discovery is very broad.¹ Be proactive—don’t always be on the responsive end of discovery demands. Here are some ways to get the most out of intake and discovery to help build a delayed diagnosis case.

Client Intake Sets Everything in Motion

Before initiating discovery requests for the defendant, conduct a thorough intake with your client. Obtain everything they have in their possession that relates to the case—these items could be critical to their claims. That can include medical literature handed to the patient, a prescription or prescription bottle, an email, a text message to the doctor, a voicemail left by the doctor, an appointment card the doctor’s office gave to your client, or discharge instructions.

If the client called the doctor to report complaints, have them download their phone records. A phone record cannot transcribe what was said during a call, but it can prove that a call was made and how long it lasted. Documented calls to doctors show your client was seeking medical advice. Obtaining your client’s—and sometimes the defendant’s—phone records can help support your client’s claim. Have your client download their phone records directly from their carrier—especially for the time period around when the doctor’s negligence occurred. You can also subpoena the records directly from the carrier. Call to find out whether the carrier has its own forms and the process for making such a request.

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Phone records can contradict a doctor’s notes indicating the plaintiff did not complain because the sheer number of calls tells a different story.

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Several times in my career the phone records were a key piece of evidence. For example, in a failure-to-diagnose ulcerative colitis case, my client kept calling the defendant to tell him their condition was worsening. The phone records were a perfect log of the various calls that were made to the provider over the course of a week. Patients are not calling their doctors to say all is well. It’s common sense for jurors to believe that the calls were made for complaints and to seek help. The phone records can contradict a doctor’s notes indicating the plaintiff did not complain because the sheer number of calls tells a different story.

Phone records also may help jog your client’s memory. Review them with your client, and review each call in the crucial time period. Sometimes it will refresh their recollection of certain events or people who could hold critical information or evidence. And the phone records fill in your time line of events, which could be a great demonstrative tool at trial to show how the elapsed time is a significant part of a delayed diagnosis claim.

At the time of intake, you are unaware of what turns a case can take. It is crucial to get this evidence early on and preserve it. For example, in a case alleging failure to timely diagnose myocardial infarction, my client went to his primary care physician with complaints of vomiting, indigestion, and back pain. The EKG done at the physician’s office was consistent with a myocardial infarction. Rather than sending him directly to the ER, the plaintiff said that the defendant doctor told him to return in two weeks when he had a cardiologist at the office.

The defendant doctor denied this and said he told the plaintiff to go to the ER, and when he refused, the defendant claimed he gave the client the next appointment with the cardiologist two days later, which he claimed my client missed. But the client found his appointment card scheduling the patient for the appointment for two weeks later, written in the office manager’s handwriting. The case was settled after that.

Thorough intake is especially important in delayed diagnosis cases because clients often believe their injuries have another cause (and thus, a different legal basis for their claims). Often, clients have no idea that a delay in diagnosis is the actual basis of their claims—and you can uncover this only after solid questioning and investigation.

For example, a client did not want nipple-sparing surgery when she had surgery for breast cancer. But the doctor did not follow her wishes, and she had complications and thought her claims would be based on that. Before her diagnosis with stage 3B breast cancer, she had yearly mammograms. We obtained her imaging, which showed an asymmetrical density indicating breast cancer in her imaging years before that had not been identified. By the time of her diagnosis, her cancer had progressed. She had no idea she was misdiagnosed.

In another case, a client whose daughter died from Stage 4 colon cancer believed the hospital negligently delayed chemotherapy, causing her daughter’s death. The cancer had overtaken so much of her daughter’s body that palliative surgery was required first just so her abdominal organs could function. It was such an extensive surgery that chemotherapy had to be postponed. Ultimately, she died before she could recover enough to receive chemotherapy.

I questioned why her cancer was at such an advanced stage when it was diagnosed. Her chart from her federally funded health clinic revealed that she had iron deficiency anemia (IDA) for four years before her diagnosis. Her physician kept prescribing iron supplements, and at each visit wrote that “if IDA does not improve, will consider sending to a gastroenterologist.” The physician recognized the IDA could have been from internal bleeding of the gastrointestinal tract yet never sent the patient to a gastroenterologist and thought it was from a heavy menstrual cycle.

The point is that many times clients are unaware that they were misdiagnosed. It is incumbent on you, as the attorney, to investigate all aspects of potential areas of medical negligence. Depending on your level of medical knowledge, you may have an understanding of where the negligence lies and what records you need to obtain. If you are unsure, conduct a thorough intake, and speak to an expert early on. Experts can shed light on potential claims and what evidence you need to prove your client’s case.

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Request copies of the medical records from the defense, which can reveal inconsistencies, alterations, and assertions that are simply not credible.

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Get the Defense Records

After you obtain all your client’s medical records, have an expert review them and identify the specific departures from the standard of care. However, also request copies of the medical records from the defense, which can reveal inconsistencies, alterations, and assertions that are simply not credible—as well as new information that can sometimes make your case.

In your initial discovery demand, request:

• a complete copy of the plaintiff’s chart
• all messages in the electronic medical record (EMR) portal to and from the plaintiff (this information will not be turned over with just a request for the medical records as this is typically not stored in the same digital location as the medical records)²
• appointment logs contained in the EMR
• metadata regarding the plaintiff’s EMR
• hospital rules, policies, and protocols regarding the specific condition or surgical procedure at issue.

In the myocardial infarction case mentioned earlier, the defendant refused to turn over the medical chart for months presuit. When I finally received the chart, I saw that the doctor wrote several times: “Refused to go to ED!” At the doctor’s deposition, I questioned him extensively on this topic. He testified that the patient “jumped off the examination table, pounded on his chest with his fist, and stated, ‘I’m fine.’” This is the same patient who made an emergency visit to see the doctor for nausea, vomiting, and indigestion and immediately went to the hospital when he was finally diagnosed days later. The defendant’s deposition testimony about the patient’s behavior stretched credulity.

In another failure-to-diagnose cancer case, I obtained the plaintiff’s chart presuit. But the defendant’s version of the chart was different from what I had. Since it was an EMR, I then demanded the metadata, which is the embedded electronic information stored in a computer system that identifies when charts are accessed, altered, edited, or deleted. The metadata audit trail revealed that the day after the physician assistant was served with the summons and complaint, he entered the chart and altered it over 100 times—essentially creating an entirely new, false chart.

Hammer Home What You Learned in the Documents

Once you’ve obtained initial discovery, the next phase is putting those documents to use at the defendant’s deposition. The deposition is the time to hold the doctor to task on their treatment of the plaintiff as they documented it in the chart and as is reflected in the discharge papers, phone records, messages, emails, and other documents you’ve obtained. Often, defendants have no recollection of your client or the care and treatment they rendered and are only testifying as to their custom and practice based on how they documented the chart. With the documentary evidence you obtained, you have a plethora of questions to ask them.

For example, a defendant may know that your client’s symptoms are consistent with cancer, but they consider cancer to be low on the differential diagnosis (a list of possible conditions that could cause your client’s symptoms), so they do not investigate it further. They incorrectly diagnose the plaintiff with a more common condition and hand the plaintiff discharge instructions with the wrong diagnosis. Get the doctor to admit that cancer is on the list of potential conditions even though it was not listed in the chart as a possibility. Once they do, they will be hard pressed to say that they had no obligation to investigate that possibility and rule it out.

In the deposition, go through the signs and symptoms of the type of cancer your client has. Inevitably, the doctor will demur that “those signs and symptoms could be a hundred different pathologies.” That may be true, but you must get the defendant to admit that cancer is one of them. Once they do, follow up with more specific questions related to your client’s condition.

For example, in a breast cancer case, ask the defendant:

• Do you agree that it was included in the differential?
• Do you agree that if it was cancer, that cancer left undiagnosed can kill a patient?
• Do you agree with the medical community that the earlier the diagnosis, the better the chance of a cure for the patient?
• Is it your opinion that because the patient was young, she could not have breast cancer?
• Do you agree that a sonogram would assist you in determining whether the lump she felt was a clogged milk duct or breast cancer?
• Did you consider ordering that test?
• Were there any risks associated with the performance of an ultrasound?
• Did you explain the risks, benefits, and alternatives of the ultrasound to the patient?
• Did you explain to the patient that you considered breast cancer as a cause?
• Did you explain to the patient that you considered breast cancer as a cause but did not think that it was likely?
• Did you think the patient had the right to know that the lump in her breast was potentially breast cancer?
• Did you think your patient was worthy enough of that test?³

Another common scenario is when the patient does not follow up with the physician. Usually, in those scenarios, the patient was never told the potential diagnosis was cancer. Your questioning of the defendant doctor should elicit testimony that the patient was completely unaware of the potential severity of their condition.

For example, in the breast cancer case, the doctor’s record states they informed the patient that “your breast sonogram was normal, and your blood work was also normal. That is very reassuring, but to be safe because of the nipple discharge, I would have you follow up with a breast surgeon.”

Nowhere does the note advise the patient that she potentially has breast cancer. At this point, the patient had a normal mammogram, two normal sonograms, and normal blood work. (She did not know that the imaging was misread.) To the patient, going to a breast surgeon is merely an “abundance of caution.” She thought from what the defendant told her that it was not likely to be breast cancer, so she did not go to a breast surgeon.

However, based on the patient’s eventual diagnosis, the doctor’s notes in the medical records show their advice deviated from the standard of care. The patient had a palpable mass with unilateral nipple discharge that was clear/orange. That is cancer until proven otherwise with a biopsy.⁴ Normal mammograms and sonograms are irrelevant in that scenario. The patient should have been advised that these are ominous signs of breast cancer and that a biopsy was necessary. When questioning the defendant doctor, ask:

• Did you consider cancer?
• If so, did you tell the patient that you considered cancer as a potential diagnosis?
• Does your note anywhere mention the word “cancer”?
• Did you have a discussion with the patient that a normal mammogram and normal sonogram do not rule out breast cancer?
• Did you inform the patient that a persistent palpable mass is highly suspicious for breast cancer?
• Did you tell the patient that a persistent palpable mass is breast cancer until proven otherwise?
• Did you inform the patient that a persistent palpable mass requires a biopsy?
• Did you inform the patient that a persistent palpable mass with unilateral discharge is very suspicious for breast cancer?
• Did you consider that the patient did not follow up with your recommendation because you did not adequately inform the patient of the high potential of her having breast cancer?
• Did you think she had a right to know that you were considering cancer even if you thought it was unlikely?
• When offering the plaintiff follow-up instructions, did you think the patient would respond more appropriately if they knew you thought they could have cancer?
• Do you agree that a patient cannot make an informed decision unless they have all the pertinent information?
• Do you agree that as the medical provider, you have an obligation to inform the patient of all pertinent information so that she can make an informed decision when it comes to her health?
• Did you reassure the patient that she likely did not have breast cancer given the normal sonogram and normal blood test?

These questions can be adjusted for the type of cancer or other condition that your client has, but the bottom line is to put the failure on the medical professional who should have the appropriate training and skill to know better than the patient and to follow the standard of care.

These various case examples underscore how important it is to dig deep during the intake and discovery phases of a delayed diagnosis case and to not let defendants off the hook with superficial explanations for what happened to your client.

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Victoria Wickman is the founder of the Law Office of Victoria Wickman in New York City and can be reached at vwickman@wickmanmedlaw.com.

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Notes

1. See Fed. R. Civ. P. 26 (b)(1) (“[P]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . information within this scope of discovery need not be admissible in evidence to be discoverable.”). Many states follow the broad scope of federal discovery. See, e.g., Fla. R. Civ. P. 1280 (b)(1) (“[P]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action.”); Texas R. Civ. P. 192.3(a); Cal. Civ. Proc. Code §2017.010. In New York, for example, C.P.L.R. §3101(a) provides that there “shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” See Fell v. Presbyterian Hosp. in the City of N.Y. at Columbia–Presbyterian Med. Ctr., 98 A.D.2d 624, 625 (N.Y. App. Div. 1983) (“pretrial disclosure extends . . . to testimony or documents which may lead to the disclosure of admissible proof”); see also Wiseman v. Am. Motors Sales Corp., 103 A.D.2d 230 (N.Y. App. Div. 1984); Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742 (N.Y. App. Div. 1984) (The burden of demonstrating that a particular subject matter is exempt from disclosure is on the party opposing discovery.).
2. For more on EMRs, see Dustin Herman, Dig Deep for the Data, Trial, Dec. 2019, at 46; Jonathan H. Lomurro, Jennifer L. Keel, & Nursine Jackson, Cures for Barriers to Electronic Health Records, Trial, Apr. 2019, at 44; Jennifer L. Keel & Matthew R. Laird, Blazing a Trail, Trial, May 2017, at 22.
3. I ask this question because the doctor can’t say no. Of course, the patient is worthy of getting the right care and treatment—so why didn’t the doctor order it?
4. Veda Parthasarathy & Usharani Rathnam, Nipple Discharge: An Early Warning Sign of Breast Cancer, 11 Int’l J. Preventive Med. 810 (2012), PMID: 23189234.