Scoliosis misdiagnosis leads to major surgery

[upset_mom]

What is the name of your state?What is the name of your state? CA

My now 13-year-old daughter was followed for scoliosis for over 3 years at arguably the best chidren's medicine institute in Northern California by the head of their pediatric orthopedics department. She was never xrayed until Sept 04, despite a documented progression in her external curve measurements and a very strong family history of scoliosis (sister, mother, maternal grandfather). This doctor also documented in his clinic notes that he was aware that my daughter suffered from a particular syndrome, which I found out afterwards is well-known (to competent doctors, not to me at the time, and not apparantly to him either) to be linked to congenital scoliosis. When they DID finally XRay her, the same head of pediatric orthopedics diagnosed a 28 degree idiopathic curvature insisting that it required no treatment. 4 other doctors we have seen since then have confirmed the correct diagnosis was congenital scoliosis with their curve measurements (from the exact same XRays) ranging from 40-44 degrees. She is now at 50 degrees, which is pretty much universally considered "mandatory surgery"

I am told by the doctors we have seen since that the correct diagnosis of congenital scoliosis is totally obvious due to malformed vertibrae clearly visible on the XRay. The malformed vertibrae were pointed out by the radiologist in his report which apparantly the pediatric orthopedic surgeon either didn't read or ignored. The malformed vertibrae were so obvious, that even I asked about them at our office visit and was told "not to worry about it", that my daughter's scoliosis was not as severe as mine (the same doctor had treated me when I was a child) and she would never require a brace or surgery. Congenital scoliosis differs from idiopathic in that a cause is known, and that cause is the malformed vertibrae (of which my daughter has 4). Congenital scoliosis cannot be treated by bracing, and the type my daughter has almost always requires surgery.

I have also been told by every doctor we have seen that a first year resident shouldn't have made this kind of mistake, much less the head of pediatric orthopedics department for a nationally recognized children's hospital who claims on his web site that scoliosis is one of his practice specialties.

My daughter now requires extensive back fusion surgery, and we are taking her across the country to a doctor who specializes in congenital scoliosis spinal fusion. If they had XRayed her earlier and had properly diagnosed the curve she could have gotten away with as few as 3 vertibrae fused, now she has to have at least 9 vertibrae fused, with extensive pain and recovery and probably some lifetime limitations against certain activities and jobs. She also now has a two inch shoulder deformity called a rib hump that requires a concurrent surgical procedure called a thoracoplasty that she wouldn't have needed at all had they caught it earlier.

I have talked to 3 or 4 firms in the Bay Area, none of whom seem to be terribly interested in taking this case. They seem to be scared of the reputation of this particular doctor and institution (because they are supposedly "the best") and they say it is hard to quantify the damages since likely she would have ended up having surgery anyways.

Am I being unrealistic or idealistic or simplistic (or any other "istic") in thinking that this is a huge, blatent case of malpractice that should not be hard to prove? How can I find a competent attorney willing to take this case on?

Thanks in advance for any advice you can give me

 

[Qfrank]

2 things to prove medical malpractice

It appears that the standard of care was not met. If the original spinal films clearly showed a 40-44% curvature and if a physician with similiar training (a pediatric orthopedic surgeon) will testify to that then it can be proven that the standard of care was not met.

In addition to proving a violation of the standard of care
a victim of medical malpractice must also establish that the failure of the doctor or other medical provider to comply with the standard of care caused them injuries.

This will be the hard part to prove and may have to wait until the final outcome of her surgery. Again if you can prove that delaying surgery (due to the misdiagnosis) resulted in additional harm and a worse outcome then you will have a case.

I wish you and your family the best. God bless.
-Q

 

[upset_mom]

2 things to prove medical malpractice

I am reasonably convinced that it will not be hard to prove that the standard of care wasn't met, and that damages resulted (i.e. fusion surgery had to be more extensive, and a procedure that didn't need to be done had to be done)

My questions are:

1) How do you quantify the value of these damages to a 13 year old?

2) How can I find a medical malpractice attorney in California willing to take this on contingency and willing to take on one of the most reputable doctors at one of the most reputable hospitals in the country for making a rookie mistake?

Thanks

 

[rmet4nzkx]

I would suggest looking outside the Bay Area if the doctor is used as an expert witness, it would be hard to find an attorney that would not have a conflict of interest. You will have to locate expert witnesses outside the bay area to support your case all of this will make for an expensive case on contingency.

 

[upset_mom]

How to find the right attorney?

I've now talked to probably a dozen law firms about this case. Most legal professionals I have spoken with think this is a viable case, the care was clearly below the standard for pediatric orthopedics, and there is clearly significant damages caused by the delay in proper diagnosis.

The response that I am getting from most of the larger firms is this case is worth "only" $400,000-$700,000, and therefore is not big enough for them given the level of complexity and the defendants. Some firms are also saying their calendars are just too booked.

I'm concerned that a smaller practice might not be able to handle the defense that this very well known hospital and doctor are likely to try and put on, even though there is no credible excuse for the doctor's screw up.

Most of my research has been done on the Internet because at work, we have an open floor plan and I'm not in a position where I can talk about the case during the work day. I also can't take off a lot of time because of the upcoming surgery

Any ideas about what is the best type of firm to approach for this kind of case would be appreciated.

Thanks again,

Sheri

 

[rmet4nzkx]

Call back some of the firms you have spoken to, and ask for a referal.
Go on line in the Superior court in the county where the hospital is associated with. Look for lawsuits against the doctor and or the hospital, look for cases against with judgements for the plaintif or settlements, which is a little more difficult, look up the names of plaintiff's attorneys, contact some of the winners.

 

[ellencee]

Lawsuits against 'the best doctor in town' do not win in court. The jury, which can not be overlooked, is more likely to believe that the doctor did not suddenly become negligent but may have made an error in judgment. Errors in judgment are not acts of negligence. When the family history is brought into evidence, the jury is going to question the motives of the plaintiff.

The plaintiff would have to prove that the child would not have required additional fusions of vertebrae and there is no way to prove that. The currently treating physicians can not guarantee that fusion of these nine vertebrae is all the child will need and I doubt the physicians have stated such.

This child may have numerous surgeries as her body matures and throughout her lifespan.

It is worth mentioning that standards of care, with few exceptions, do not preclude or prevent deviating from the standard of care. A simple example is changing a venous access site for IV infusion in accordance with standards of care (ie. every 72 hours). If the patient has no suitable alternate site, the healthcare professional can make the professional determination to leave the IV site in the same place for much longer, until the IV is discontinued or until a central line can be placed. If an infection develops or the IV infiltrates, etc. and the decision to leave the site unchanged was based on prudent professional judgment, there is no act of negligence even though the standard of care was not met. Likewise, just because the x-ray revealed a more pronounced curvature than the physician "saw and treated" does not mean the physician was negligent by not performing surgery on a 9 year old female child on the edge or in the midst of rapid skeletal and muscle growth.

I don't think it is healthy for the mother or the child to be seeking to hold a physician responsible for what genetics has caused.

As for medical experts, unless an attorney agrees to go up against the best doctor in town and in front of a hometown jury, judge, and media, the issue of medical experts is moot.

EC

 

[upset_mom]

Thank you ellencee for the explanation about deviation of standard of care vs. negligence, and rmet4nzkx for the advice about how to go about continuing my search for an attorney.

I respectfully disagree with some of your comments ellencee. In one particular clinic note, one of the doctors who correctly diagnosed my daughter noted that her upper thoracic curve had started as a compensatory curve (compensating for the malformed vertibrae below), and had become a fixed structural curve over time. I interpret that as at least one indication that earlier intervention could have prevented her curve from progressing to the point we are at today -- especially since her external curve measurement was only 6 degrees at age 9. Furthermore, I see a significant difference between an "error in judgment" and a mistake that a first year resident shouldn't have made, which is how other doctors have characterized his diagnosis.

My assessment of the negligence is two fold: The first act of negligence was in not performing an Xray for 3 years despite the strong family history plus the fact that she had syndrome known in medical literature to be strongly linked with congenital scoliosis, the second act of negligence was misdiagnosing the curve as a 28 degree idiopathic curve rather than a 40-44 degree congenital curve. If my "mom radar" hadn't gone off at our September visit that something was wrong and I had not followed up with other doctors despite the original doctors assurances that I was overreacting, who knows how bad things would have gotten before we finally got the proper diagnosis. I kick myself every, single day for not insisting that he do the back Xray earlier, but I relied on this doctor's assurances that she didn't need one.

In children with hemivertibrae (which my daughter has 2 of) it is very common for spinal fusion surgery to be done at a very young age to fuse the localized malformed area to avoid the very complications we are running into today. The doctor who will likely actually be performing the surgery mentioned it is unusual for him to be operating on a child as old as my daughter, because ususally he performs these surgeries at a much younger age.

I am not seeking to hold the doctor accountable for what genetics has caused. I am seeking to hold him accountable for his inept treatment of my daughter which has resulted in her condition being significantly worsened.

I do appreciate your input, and in the end, I may just file a complaint with the hospital and the certification board, but it is good to know what my options are and what well-educated independant people think about this since I am so emotionally attached to the subject

One other data point -- even though my daughter made at least 6 visits to the doctor over 3 years, there is only one set of dictated clinic notes they can find. I have no idea if this is considered normal or not.

Thanks again