The short answer to the question of whether a doctor can be sued for delaying treatment is, “yes.” The real challenge, however, is proving your case. Remember that a claim for delay in treatment is often different from a claim for delayed diagnosis because, in a delayed treatment claim, your doctor may have already known of your condition but delayed treating it anyway.
A malpractice claim based on a delay in treatment must establish the following four elements:
Each of these elements must be proven by a “preponderance of the evidence” standard, which means approximately “more likely than not.”
When a doctor commits professional negligence, he breaches his duty of care to you, which breach constitutes the second element of malpractice. The question is, what exactly constitutes professional negligence? There is no definitive answer to this question because it varies according to the circumstances.
Anything between these two extremes, however, is subject to debate. The debate, however, is usually too complex and requires too much scientific knowledge for a jury to manage. It is for this reason that a malpractice lawsuit usually devolves into a “battle of the experts” in which both sides call expert medical witnesses to support their version of events, and the jury decides between them. The same dynamic also applies to private settlement negotiations.
In many cases, a delay in treatment can be devastating: The following are some broad categories of the types of harm that might occur:
You cannot win a malpractice claim over delay in treatment if the delay itself didn’t cause you any additional harm. Suppose you are afflicted with a type of cancer, for example, that cannot be effectively treated. In this case, you probably cannot win a claim for delay in treatment, because the delay didn’t cause you any harm that you weren’t going to have to suffer even without the delay.
Certain circumstances prompt a delay in treatment more than others do. The most common circumstances include:
An emergency room is a place where the urgency of your need for treatment is most obvious. It is also generally the place where the consequences of a delay in treatment are the most serious, and where any harm that results is the most easily traceable to a delay in treatment.
In an emergency room or an urgent care facility, health care providers are charged with the responsibility of properly distinguishing the patients in most urgent need from less urgent cases. Although it may not be obvious which patients are in the most urgent need, it is the responsibility of health care professionals to quickly and accurately make these assessments. Failure to do so can constitute professional negligence.
Worldwide, the Covid-19 virus crisis has resulted in treatment delays for several reasons:
It remains to be seen whether healthcare providers will be held liable for any of the foregoing treatment delays. Treatment delays caused by government shutdown orders are almost certainly not susceptible to malpractice liability. Hospitals may, however, be held liable for failure to stockpile critical medical supplies. It is hard to see how individual doctors could be held liable except under unusual circumstances.
In some cases, a patient will die because of a treatment delay. When this happens, the victim’s malpractice claim does not die with him. Instead, it becomes a wrongful death claim. Proving a wrongful death claim works just about the same as proving a malpractice claim in which the patient did not die. Only the executor or administrator of the victim’s probate estate can file the lawsuit, and damages go to the estate for distribution by the probate court.
Several potential defenses are available to doctors who are subjected to malpractice claims for delay in treatment, whether that failure resulted from failure to diagnose or from accurate diagnosis followed by a decision to delay treatment. Below is a description of a few possible defenses:
Treatment often involves liabilities. Some types of medical tests, for example, can be invasive, painful, and humiliating. Some types of surgery can be risky. Treating the patient for one condition might make another condition worse.
The doctor can argue that all factors considered, his decision to delay treatment was reasonable or at least not negligent. This assessment must not be made in hindsight, but given what the doctor knew or should have known at the time he decided to delay treatment.
Not all medical mistakes rise to the level of professional negligence. If the delay in treatment was caused by a delayed diagnosis or a failure to diagnose, the doctor can argue that a reasonable physician could have come to the same conclusions he did and that, therefore, his delay did not constitute professional negligence.
This is a “passing the buck” strategy. If the delay in treatment resulted from a malfunctioning medical device, the malpractice claim becomes a product liability claim against the equipment manufacturer or a negligence claim against whoever was responsible for maintaining it (most likely the hospital).
If your doctor’s failure to diagnose was caused by a lab error that concealed your condition or caused your doctor to misdiagnose you, your claim might be against the lab (most likely the hospital itself) rather than your doctor. This is another “passing the buck” strategy.
The delay in treatment might have been partly or wholly your fault if you:
Any of the foregoing could fail to diagnose or misdiagnose, which in turn could result in delayed treatment. The delay in treatment could also be your fault if you failed to show up at a scheduled surgery, for example.
If the delay in treatment was mostly your fault, you will receive no compensation. If you were up to 50 percent at fault, however, you can receive reduced damages after your degree of contribution to fault is subtracted (30 percent, for example).