Misdiagnosis allegation not enough for negligence claim to go on

Tanya Albert Henry , Contributing News Writer

A plaintiff in a medical malpractice case tried to prove her claims by using an expert witness who concluded that there was malpractice, but never discussed what the standard of care that should have been followed was or how the physician breached that standard of care.

The Supreme Court of the State of Washington in June ruled 7–2 that the case, Reyes v. Yakima Health District, could not go to trial because a conclusory statement like the one the plaintiff presented is not enough to show there is a medical negligence claim.

“Allegations amounting to an assertion that the standard of care was to correctly diagnose or treat the patient are insufficient,” the justices said. “Instead, the affiant must state specific facts showing what the applicable standard of care was and how the defendant violated it. [The doctor in this case] failed to do so. … We do not require affiants to aver talismanic magic words, but allegations must amount to more than conclusions of misdiagnosis with a basis in admissible evidence that can support a claim.”

The ruling upheld the trial court and appellate court rulings. If the state’s highest court had let the case move forward with the expert’s conclusory statement, it would have changed settled malpractice law in Washington that requires an expert to identify the standard of care specific to the case and show that standard of care was not met.

In an amicus brief, the Litigation Center of the American Medical Association and State Medical Societies told the state Supreme Court that established law should not be changed.

Otherwise, “defendant physicians would no longer be held accountable for fault-based liability as established by the Legislature … but would be faced with liability for the mere fact that an injury was therapy produced or that there was an unfavorable or ‘bad’ result from therapy,” the Litigation Center, which filed the brief with the Washington State Medical Association and the Washington Chapter of the American College of Emergency Physicians, told the court.

TB test and treatment

Judith Margarita Reyes sued Yakima Health District (YHD), Christopher Spitters, MD, and others after her husband Jose Luis Reyes died after being treated for tuberculosis. Several physicians, including some connected with YHD, diagnosed her husband with tuberculosis after personal observations and multiple laboratory test and imaging results. For example, there were positive tuberculosis cultures from Jose’s septum sample and other samples the Washington State Department of Health’s Public Health Laboratory analyzed also tested positive for TB.

Physicians prescribed medications to treat the disease and told Jose to have his liver function tested. It’s undisputed according to court records that Jose did not show up to have those labs done.

After taking the medicine, Reyes said he felt nauseated and dizzy. He lacked energy, lost his appetite and his skin changed to a reddish-yellow color, court records indicate. YHD told Reyes to keep taking the medication and threatened incarceration if he didn’t; Jose continued the treatment and his condition worsened. Shortly after that, YHD found “serious deviations” in Reyes’ lab results. He ultimately died of liver failure.

When Judith Reyes sued, an internist who specializes in treating complex medical conditions with chronic pain symptoms filed a declaration that, among other things, stated her review of Jose’s medical records showed chronic liver disease, not tuberculosis. She said YHD and Dr. Spitters should have known her husband did not have tuberculosis and that the treatment did not meet the standard of care. The affidavit said Reyes had “clinical symptoms of liver failure that should have been easily diagnosed by observation of the patient.” However, it didn’t explain what those easily diagnosed symptoms were or how the standard of care may have been violated.

In their ruling, the Supreme Court justices said “allegations of misdiagnosis alone are not enough” and that physicians are instead open to negligence actions when a misdiagnosis breaches the standard of care. The court said that Judith’s expert gave “no indication of what a reasonable physician should have done other than diagnose liver failure by observation of the patient.”

That was part of the argument in the Litigation Center brief that told the court that “the ultimate question—was the diagnosis of tuberculosis and the initiation of treatment for that disease on receipt of positive TB test results a breach of the applicable standard of care—is eliminated from [the expert’s] the analysis. This is especially concerning where undisputed evidence in the record speaks directly to that question and needed to be addressed by the petitioners’ expert—but was not.”

Given the physicians based their diagnosis on lab results and also told Jose to come in for monitoring, overturning the lower court rulings would have had “a chilling effect on public health departments’ public mission to combat tuberculosis,” the Litigation Center said in its brief, noting that the “increased legal exposure will only hinder the public health effort to control and prevent tuberculosis.”