Combination of flu season and COVID-19 second wave could spike delayed diagnosis, misdiagnosis

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As the second wave of the COVID-19 pandemic rages on, medical malpractice lawyers are anticipating a potential spike in delayed diagnosis and misdiagnosis, the most common types of medical negligence that arise in the context of infectious diseases. 

“What we try and do as advocates is not only win a particular case but advocate for situations that are going to improve patient safety across the board — that’s really my concern,” says Daniela Pacheco, a partner in the medical malpractice group at Neinstein LLP.

During the initial wave of the pandemic, people were reluctant to go to their doctors or head to the emergency room if they were sick. As Ontario enters respiratory viral season, Pacheco predicts ERs will once again see a significant drop in numbers as people are reluctant to come to the hospital. Many of the calls Pacheco is fielding these days have to do with delay of services — people who had investigations into health issues planned for April, for example, that were significantly pushed off. Coming up to flu season, there is also a concern that many will assume all respiratory illness is COVID-19, and many patients may choose to self-isolate unless symptoms become too serious to manage, potentially delaying the diagnosis of other conditions.

“By the time they get to the ER, how much longer is it going to take to evaluate and investigate that when the presumption might be that they have COVID? Or when there's no space in the ICU?” Pacheco says. “What you have is a sort of a trickle-down problem, starting with patients not attending but certainly ending with issues that that may come up in terms of investigation and treatment.”

There’s “a real risk” people who are sick with a variety of infections may not have their conditions identified early, when they are most likely to be treatable. While there is some amount of natural disease progression that would have occurred regardless of a delay or a misdiagnosis, part of Pacheco’s job is working to understand what would have happened had the diagnosis occurred earlier.

“The question there is, had physicians identified it early enough, what measures would they have put in place?” Pacheco asks. “If you have the diagnosis, even though you couldn't treat the virus itself, you could put that patient on a path of very significant recovery much earlier.”

It also stands to reason that physicians, working under never before seen conditions with already strained resources, might first think patients presenting with respiratory symptoms are suffering from COVID. A medical malpractice lawyer already faces a high bar as most courts will consider the resource and time pressures under which physicians operate, which is fair Pacheco notes. Especially now, doctors are doing their best in strange circumstances, and they were already working with strained resources before the pandemic.

The law in Canada takes the circumstances physicians find themselves in today into account because it asks, what would a reasonable health practitioner have done under these circumstances? The court will take into account the changing situation due to COVID-19 — perhaps hospitals will be operating with less nursing and observation available, or struggle with a backlog of tests — but Pacheco says medical malpractice lawyers have always had to overcome those issues in terms of trying to get justice.

“When it comes to these cases in general, it's really important to take a multi-faceted approach,” says Pacheco. “Had this been diagnosed earlier where would we be today? That is really the most important question of these infectious disease cases.”

During a recent panel with Osgoode Hall law students, Pacheco discussed virtual care or systems such as Telehealth, and while those things are excellent stopgaps, “we can’t fool ourselves.”

“Proper medical care, since the beginning of time, has required a physical assessment of the patient — looking at the patient, engaging with the patient, creating a relationship — and all those things are severely hampered in this environment.”

One of the biggest sources of medical malpractice is a physician’s failure to read a result — doctors are busy and might miss a pathology or a blood test result, and the patient goes without a diagnosis. Pacheco stressed the importance of patients becoming active participants in their care; asking questions, reviewing their medical records and understanding the results of lab tests or imaging tests they get so they can work effectively with their doctors to ensure they obtain optimal care.

“Let’s help them,” Pacheco says of physicians working during this pandemic. “It’s not an antagonistic thing. The goal is for everyone to have better care — that’s something I've been advocating for from the beginning.”