The hardest part of handling a medical malpractice case is not screening, although that is difficult. It is not finding and working with experts, although that, too, is hard work. The hardest part is defending against the ever-changing defenses that are presented to you as the case moves along. You know you have made inroads on a particular defense when a new one appears.
The purpose of this paper is to help you screen cases involving failure to diagnose coronary artery disease (CAD) and to help you recognize and successfully defeat the various defenses you will face.
What Are the Elements of a Good Case?
1. Numerous Medical Visits: Although cases can be won with only one visit to the doctor – or, more commonly, to the Emergency Room – it is a much better case if the victim saw the doctor more than once.
2. Documentation of Symptoms: As with any medical malpractice case, the clearer the symptoms, the more likely you are to convince a jury that the doctor missed the diagnosis. There is no substitute for written documentation in the doctor’s own words. We all know that it is an uphill battle to convince a jury to believe the victim in a direct conflict between the victim and the doctor. Even with family member witnesses, the doctor is more likely to be believed.
3. Risk Factors: As with every fact in a lawsuit, this is a two-edged sword. The more risk factors your victim had, the more obvious it is that CAD should have been included in the doctor’s differential diagnosis. However, the more the victim was not caring for him or herself, the less sympathetic he or she is to the jury. Key risk factors include family history of CAD, smoking, high cholesterol (high LDL, high Triglycerides, low HDL), being overweight, and high blood pressure.
4. Symptoms: CAD varies in its presentation, but the more common risk factors your victim presented with, the more likely that the doctor should have recognized it. Common (but not exclusive) signs and symptoms of CAD include chest pain (tightness, pressure, weight, heaviness), pain or numbness radiating down the left arm, pain radiating into the neck or jaw, sweating, nausea, and pain brought on by exertion.
5. Compliance: The issue of whether the victim would have undergone diagnostic tests, such as a stress EKG, will be important. If other tests were ordered that were not complied with, this hurts your case. For example, if your client had previously refused to undergo a mammogram, or a CT scan for headaches, you have a more difficult time convincing a jury that your client would have undergone the stress EKG. You want a victim who did whatever the doctor asked.
6. Timeframe: Is there enough time from when a reasonable doctor should have diagnosed the CAD and the MI for appropriate testing to be accomplished? This can be a huge stumbling block in the typical case where the patient is seen in the ER, sent home with instructions to see his or her family practice physician in the next few days to set up a stress EKG, and dies within hours of the ER visit.
7. Autopsy: If it is a death case, an autopsy is mandatory except in the unusual circumstance. It is needed to show cause of death and whether or not the condition was treatable.
8. Health: Of course, the less non-cardiac health problems your client has, the better.
What Defenses Will You Face?
1. The 70% cause defense: Most heart attacks come from occlusions that are less than 70 percent. A stress test, therefore, would not have shown the occlusion because a certain percentage is missed. You will hear that only occlusions of 70% or more are likely to be detected by a stress test. The defense experts will always conclude that your client had a small occlusion.
2. Damages: She was likely (38%+) to restenose within one year and have another heart attack anyway.
3. 500,000 defense: Over 500,000 people drop dead of an MI in this country every year. Some people simply cannot be helped. This is compelling to a jury because they all know someone who “dropped over from a heart attack” with no warning and could not be saved.
4. Smoker defense: This plays upon the general bias against smokers. Many times the treater has brochures in his or her office which were handed out to your client, encouraging patients to stop smoking and warning of the risks of smoking.
5. Big fat slob defense: This is similar to the smoker defense – it plays upon the bias against the person who is overweight, does not exercise, has high cholesterol and does not control intake of fatty foods. We know from AAJ’s jury bias research that jurors tend to blame the victim rather than the doctor and this defense gives the jury a good reason to do so.
6. Smoker causation defense: Smokers tend to have less stable plaques, which can rupture suddenly, causing an acute event which is unpredictable. This can happen with quite small plaques, which are under 70% occlusions. This means that stress tests would not detect them. Again, this is an easy way for jurors to exonerate the doctor.
7. Medications: Any medication that can be seen as contributing to the MI will be a factor in the trial. For example, if Metabolife was being taken, then there will be an issue regarding the role of Ephedra in the death.
8. Alternative diagnosis: If the symptoms can in any way be interpreted as some other benign condition, this will be the explanation for the failure to diagnose CAD. For example, panic attacks can have symptoms strikingly similar to CAD. Or, reflux or gallbladder may be part of the differential.
9. No pain on exertion: If your victim has unstable angina, which typically is not brought on by exertion, the defense will argue that she could not have had a large (i.e., diagnosable by stress test) occlusion or surely there would have been pain on exertion. Although the defense will be wrong on this point, jurors find the logic compelling. How can you have a large (70%+) occlusion and not have symptoms upon exertion?
10. The Framingham Study: This is a large, ongoing national study which among many other things, has a point system for determining an estimate of a particular patient’s ten-year risk for heart disease. The points can add up to a seemingly very small increase in your client’s ten-year risk for heart disease. However, even a 1-2 percent increase is significant.
11. Infectious Process: A relatively new theory is that an infectious process may cause a plaque to rupture. This, of course, would be an acute event that would not be diagnosable in advance. If the victim has an elevated white count upon admission to the hospital after the MI, then this defense could be raised. Note: The MI itself can cause elevated white counts.
12. Diffuse coronary artery disease: If your victim has plaque in several places in her heart, you will hear the defense that she was going to have continuing, ongoing problems. If she only had one occlusion, this will be used as evidence that it was a small plaque that ruptured acutely.