Overcoming alleged ‘wrong diagnosis’ at med-mal trial

Barton Gilman recently obtained a jury verdict in favor of a neurologist against a woman who alleged the doctor negligently misdiagnosed her has having multiple sclerosis. The woman claimed she labored under the mistaken belief that she suffered from an incurable, life altering disease, and that she had received over 900 painful Betaseron injections and other unnecessary steroid treatments as a result of the alleged misdiagnosis. Following the eight-day trial, the Providence Superior Court jury took only three hours to render its verdict in favor of our client. Challenges presented by the trial included convincing the jury that even if the “wrong diagnosis” is made, it does not necessarily constitute a breach of the standard of care. John J. Barton, lead attorney defending the neurologist at trial, addresses below some of the significant legal and evidentiary issues he encountered during the case.

Q. The care at issue in this case began in 1991, and it wasn’t until nine years later that the patient filed suit. How can that be? Why didn’t the statute of limitations bar her lawsuit?

A. It is true that Rhode Island has a three-year statute of limitations for medical malpractice actions, but, as in most states, that period does not begin to run until the patient “discovers” that he or she has been harmed as a result of the alleged malpractice. Here, it wasn’t until 1999, eight years after she was first diagnosed as having multiple sclerosis, that the patient underwent repeat MRIs of her brain and spine, ordered by another doctor. Those films were interpreted as showing no demyelinating plaques of the sort that are commonly associated with MS. The patient arguably acted within the statute of limitations because she filed suit in 2000, one year after discovering that she purportedly did not have MS. This certainly demonstrates the importance of writing detailed office records and maintaining them well beyond the statutory record retention period. Memories fade and are subject to revision. Records endure, and serve as the most credible account of what actually occurred.

Q. If suit was filed in 2000, why did it take 13 years to get reached for trial?

A. That protracted course of medical malpractice litigation is certainly not typical. These cases usually get reached for trial within three years of the time the complaint is filed. Here, the neurologist’s original counsel felt that it was likely that this case would be voluntarily dismissed at some point, and that the cost and inconvenience of trial could be avoided if the doctor and his carrier just remained patient and “let sleeping dogs lie,” if you will. We inherited this case in 2011 when the carrier’s patience had run out, and the potential interest on a possible verdict topped 120 percent. When they retained us in 2011, our orders were to try the case and defend the doctor’s interests.

Q. If it was truly a misdiagnosis, why do you think the jury came back with a verdict for the doctor?

A. I’m not so sure that it was a misdiagnosis, and the doctor certainly didn’t think it was a misdiagnosis. The patient had all of the tell-tale signs of multiple sclerosis. She had recurrent debilitating numbness and tingling in her arms and legs, chronic fatigue, and periodic abnormal reflexes. All of these clinical signs and symptoms remitted and relapsed over many years up to the present time in the classic pattern exhibited by MS. Our medical expert is a board-certified neurologist with over 35 years of experience diagnosing and treating MS patients. He explained that MS was not ruled out just because the patient showed no evidence of demyelinating plaques on an MRI. It just meant that she fell into the 10 to 15% of MS patients who were MRI negative. These plaques can be as small as .5 mm. An MRI often does not detect them, particularly when the provocative lesions are located in the narrow spinal column that’s difficult to image.

Q. What other important factors came into play at trial?

A. We certainly had a great medical expert who trumped the plaintiff’s hired gun from out of state, but the deciding factor, based on post-trial juror input, was the way in which jurors perceived each party. The plaintiff overreached by arguing that her “misdiagnosis” made it impossible for her to continue working, and caused her to slip into a long-term depression about her original diagnosis and uncertainty about what was actually causing her ongoing disabilities. In contrast, the jury indicated that they were impressed with the fact that the doctor took over a year to evaluate the woman’s condition before concluding that she had probable MS. Jurors noted that the defendant conscientiously investigated and ruled out virtually every other possible cause for the patient’s condition. They felt he went well beyond the call of duty in getting her qualified for Betaseron, the most promising medical therapy available at the time. He even convinced her healthcare insurer to cover the $1,000 per month cost of the Betaseron at no charge to her. In short, he cared about his patient, and he repeatedly demonstrated his concern for her while she was under his care. They say that jurors really don’t care how much you know until they know how much you care. Perhaps that helps to explain the verdict in this case.

Q. What was the hardest thing you had to overcome in this case?

A. We had to convince the jury that a mistake in medical judgment – a “wrong diagnosis” – does not necessarily constitute a breach in the standard of care. Even if the doctor was wrong about the patient having MS, that did not mean he was negligent. Doctors are not expected to be infallible. They are only expected to conduct themselves as the average qualified practitioner would have under similar circumstances. Several practitioners were involved in the patient’s care during the same period of time as our client. They all believed that she had MS given her constellation of clinical signs and symptoms. No witnesses, not even the patient’s own neurology expert, could identify any other condition or disease process that could account for all of the patient’s signs and symptoms. A multiple sclerosis expert explained the limitations of MRI testing in the early 1990s compared to 1999.

Q. What was your perception of the jury?

A. We had a carefully selected jury that recognized there are worse things in life than finding out that you might not actually have a life-altering, life-threatening disease. These cases often come down to a matter of perspective. We work hard to help jurors see what our clients see, and to take a moment to “walk a mile in their shoes,” if you will. I think that’s what happened in this case, and why the jury reached the verdict that it did.