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Decedent's estate claims doctor liable for failure to diagnose

One of the biggest sources of medical negligence claims in Louisiana and other jurisdictions is the failure of a treating physician to make a careful enough examination of the patient's symptoms and to take the indicated diagnostic and treatment actions. This may be referred to as a failure to diagnose theory, and it stands behind many claims of medical negligence that are filed. If the physician fails to follow a minimally competent protocol for diagnostic testing of indicated conditions, the outcome could be a finding of medical malpractice.

These basic issues arise in a case that is currently in trial in another state. The estate of a man who died at age 56 of a bleeding ulcer sued the treating physician for examining him and sending him home without tests and surgical intervention. The plaintiff's counsel stated in his opening statement that the doctor failed in the first test of medicine: the duty to conduct a thorough examination.

Instead, he sent the patient home with only a prescription. The attorney for the plaintiff explained to the jury that when the doctor sent the decedent home the man was actually in great danger of bleeding to death;, of course, that is what happened. It was stated to the jury that the symptoms showed the doctor that he had to do more. Tests would have further revealed the need for surgical intervention to stop the bleeding.

It is indicated by the attorney's opening statement that the plaintiff will present expert testimony from one or more gastroenterologists who will testify that the doctor was medically negligent when he sent the patient home without further testing and treatment, which would have indicated the need for surgery. The defense is arguing that the doctor gave reasonable and appropriate care to the plaintiff. In Louisiana or another state, the expert testimony will be crucial under these facts. It will be important to prove by expert medical testimony that there was a failure to diagnose that constituted medical malpractice and that it was substantially responsible for the man's unnecessary death.

Source:, "Medical malpractice trial starts", Peter E. Bortner, Feb. 23, 2016

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