Of course, medicine is not an exact science and there is no law that says a doctor has to be right every time they make a diagnosis or that they have to catch every condition before it advances. What is necessary to prove medical malpractice is a showing that a physician breached the standard of care given the circumstances. It could mean neglecting to review a patient’s medical history. It could be failing to order the appropriate test. It could mean not recognizing the obvious symptoms of illness.
Diagnostic delay or missed diagnosis is one of the top allegations in medical malpractice lawsuits in South Carolina. One recent case before the South Carolina Court of Appeals, Marshall v. Dodds, serves as an example.
According to court records, plaintiff was diagnosed in February 2010 with a condition known as lymphoplasmacytic lymphoma, a rare form of blood cancer. Before receiving this diagnosis, plaintiff was treated by two other doctors, including defendant nephrologist and defendant rheumatologist, both of whom she alleged committed medical malpractice by failing to diagnose her cancer on numerous occasions.
The nephrologist (who specializes in kidney care) first saw plaintiff in September 2004, when she complained of increased protein levels in her urine. He did not order additional testing at that time. She returned to visit him two months later and, as she had no further complaint, he did not order additional testing. She returned February 2005, and he at that time ordered a 24-hour urine test, which detected heightened protein levels. He did not order additional tests. Then in September 2005, he ordered another test that showed her urine protein levels had further increased. He did not order further testing.
She then started seeing the rheumatologist. She was diagnosed with mixed connective tissue disease. She presented with enlarged lymph nodes, fever, chills and other symptoms. He too noted heightened urine protein. However, he did not order further testing.
Plaintiff alleged these failures to diagnosed caused a hazardous delay on her receiving cancer treatment.
The circuit court granted defendants’ motions for summary judgment, arguing plaintiff’s claims were not timely because the statute of repose started to run after the first alleged misdiagnoses. The court pointed to an earlier Georgia case in which it was concluded a later negligent act can’t serve as a starting point of the statute of repose where the negligent act is simply the repeated failure to diagnose and treat a worsening condition.
Plaintiffs appealed, and the South Carolina Court of Appeals reversed and remanded.
In South Carolina, there is a six-year statute of repose. There is a three-year statute of limitations, but it may be extended up to six years from the date it reasonably ought to have been discovered.
Plaintiffs conceded they can’t seek to impose liability on the doctors for acts or omissions made outside the repose period. However, they allege there are a number of dates that still fall within that repose period. Plaintiffs’ expert witnesses opined the doctors should have ordered additional tests and, if they had, the cancer would have been discovered earlier.
The court agreed, reversed and remanded.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Marshall v. Dodds, May 4, 2016, South Carolina Court of Appeal
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