A post from the New York Personal Injury Law Blog (one I find enjoyable to read, as law blogs go) says, somewhat to my surprise, that:
Suits against emergency departments are very difficult, though not impossible. Jurors will, if given half a chance, give the benefit of the doubt to emergency room physicians, often times even if their own protocols are violated.
Well, that’s news to me. I hope he’s (Eric Turkewitz) right. He reports that jury selection started yesterday. Pretty darn important, that. Unless the media reports are profoundly misleading (and that’s a big “if”) it will be difficult for the plaintiffs to sustain their burden of proof in the eyes of an objective jury. That’s why, in this high stakes legal battle, you can bet, the plaintiff attorneys will be scrambling for passionate, emotion driven, star struck jurors.
Dr. Wes, blogging over at Med Page Today, cites inflated public expectations of medicine:
Unfortunately, our profession has hyped its tools, instruments and outcomes so excessively through magazines, TV advertisements, miraculous TV shows (take "ER" or "House, MD" for instance) and hospital "Top 100" ratings, that the general public has forgotten that we cannot always fix everything or cure everything. To miss a diagnosis of a relatively rare disease (relative to more common disorders) is no longer acceptable in America.
Society expects a zero defect medical system with diagnostic and therapeutic perfection. Dr. Wes notes another lesson from this lawsuit: it is an example of why defensive over testing is done and why medical costs are so high.
Finally, read the comment by The Happy Hospitalist on my February 4 post. He correctly points out that this isn’t malpractice; it’s a matter of differential diagnosis. No matter how strongly the signs, symptoms and test results point to a particular diagnosis the patient could always have something else. Occasional misdiagnosis is inevitable, even by the best, brightest and most careful clinicians. Such misdiagnosis is considered medical error these days, and that’s just plain wrong. It inflates published estimates of medical mistakes and drives unreasonable public expectations.