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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.

The Elements of a Malpractice Claim

A malpractice claim based on a delay in treatment must establish the following four elements:

• A doctor-patient relationship existed at the time of treatment.
• The doctor breached his duty of care towards you (in this case, unreasonably delaying treatment).
• You suffered harm.
• The harm you suffered was caused by the delay in treatment.

Each of these elements must be proven by a “preponderance of the evidence” standard, which means approximately “more likely than not.”

What Is a Professional Negligence?

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.

• Suppose you are vomiting blood, and your doctor tells you to “take two aspirins and call me in the morning.” That is almost certainly professional negligence.
• Suppose you complain of a mild headache and the doctor tells you to “take two aspirin and call him in the morning.” Without more, that is probably not professional negligence – even if it later turns out that you have a brain tumor.

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.

Proving Damages

In many cases, a delay in treatment can be devastating: The following are some broad categories of the types of harm that might occur:

• A worsening of your condition that would not have occurred if you had been treated promptly;
• A worsening of the symptoms associated with your condition;
• The development of a new injury as a consequence of the untreated condition (dizziness is left untreated, and you consequently fall and break your hip or sustain a concussion);
• Decreased effectiveness of the treatment that eventually occurs;
• Increased pain and suffering; and
• A death that would not have occurred if the treatment had been promptly rendered.

Causation

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.

Circumstances in Which Treatment Is Most Likely to Be Delayed

Certain circumstances prompt a delay in treatment more than others do. The most common circumstances include:

• A doctor fails to properly diagnose your condition in the first place by either diagnosing you with the wrong condition or by failing to diagnose you with any illness at all.
• A doctor fails to promptly order lab tests, resulting in delayed diagnosis, which in turn results in delayed treatment.
• A doctor delays scheduling surgery. He may, for example, schedule surgery for the following week even though emergency surgery is needed. The most common example is the case where a doctor fails to order a C-section on a woman in labor, resulting in complications that might harm the mother or the infant. Cerebral palsy in the infant is a common consequence of a delayed C-section.
• An intern who works 20 hours a day rolls over and goes back to sleep when a nurse alerts him that a patient is in distress. This will result in a delay in both diagnosis and treatment.
• The patient visits a busy emergency room and is inappropriately sent to the back of the line to wait for treatment.

Delaying the Treatment in the Emergency Room or Urgent Care Facility

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.

COVID-19-Related Treatment Delays

Worldwide, the Covid-19 virus crisis has resulted in treatment delays for several reasons:

• Hospitals become overloaded with Covid-19 patients, resulting in delayed treatment. Although this might not be the fault of the doctor or even the hospital, a treatment delay that results from a failure to stockpile critical medical equipment such as ventilators could very well be the hospital’s fault.
• Failure to diagnose or treat other conditions, such as heart problems, because the doctor or the hospital is too busy treating Covid-19 patients. Over 600,000 Americans are treated with chemotherapy every year. What happens if their doctors are too busy treating Covid-19 patients, or if hospitals cannot assure chemotherapy patients that they will not contract Covid-19 while visiting the hospital?
• Doctors collapse from exhaustion from treating too many patients or are forced to become patients themselves when they contract COVID-19 from their patients.
• Failure to diagnose conditions such as cancer or other diseases because “non-critical” medical procedures such as routine cancer screenings were postponed during a Covid-19 shutdown. Even though over 100,000 Americans per month are diagnosed with cancer, the American Cancer Society has even recommended that people postpone routine cancer screenings.

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.

Wrongful Death Lawsuits

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.

Defenses

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:

Reasonable fear of overtreating the patient

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.

A reasonable error not rising to the level of professional negligence

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.

Malfunctioning medical equipment

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).

A lab error

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.

Comparative fault

The delay in treatment might have been partly or wholly your fault if you:

• failed to provide an accurate medical history;
• failed to report symptoms;
• lied to your doctor about your condition; or
• deliberately concealed information such as illegal drug use.

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).

We Stand Ready to Help

If you believe that you are the victim of delayed treatment that might amount to malpractice, call Berkowitz Hanna today or simply contact us online for a free initial consultation.