Tag trial attorney

When is missed or delayed colorectal cancer (CRC) considered negligence?

In this blog, I’ll be reviewing the elements that are reviewed to identify if a missed, or delayed CRC diagnosis constitutes negligence.  I will also provide some examples of breaches in the standards of care specific to missed CRC cases.  As a means to promote greater awareness of colorectal health, and CRC awareness, I will also share current statistics, screening recommendations from authoritative sources, risk factors for CRC, and CRC symptoms.

Evaluating your CRC Case for Negligence / Mitigating Risk for Medical Negligence:

Having an awareness of the current standards of care, and rendering care in accordance to current standards of care specific to risk-based screening, and treatment reduces the risk of medical negligence.  A missed or delayed diagnosis of CRC is associated with greater morbidity and mortality.  Literature suggestions that delays in diagnosis are related to avoidable factors, such as improving the quality of bowel preparation, ensuring further investigations in patients with incomplete endoscopies, and colonoscopies, having endoscopies performed in accredited endoscopy centers, and timely follow up when non-cancer pathology is identified.  

Secondary to the fact that 2%-6% of CRC cases are missed following colonoscopy, most professional societies recommend counseling patients about this “miss rate.”

When evaluating a missed CRC diagnosis case for negligence, the four legal elements of negligence must be proven:

1. Duty: Did the defendant have a duty to the plaintiff?
2. Breach of Duty: Did the defendant fail to deliver care that an ordinarily careful, reasonable, and prudent person would do under the same or similar circumstance? Were there acts of omission related to the standards of care being met?

A. Failure to identify that the patient was at high risk for CRC.

B. Failure to recognize the patient’s symptoms as a risk factor for CRC.

C. Failure to order CRC screening.

D. Failure to include CRC in the differential diagnoses.

E. Failure to order appropriate tests, and/or referrals following a diagnosis of CRC

3. Damages & Injuries: Were there damages or injuries, such as economic and non-economic damages, that the plaintiff is alleging?

4. Causation: Did the acts of the defendant cause the damages, or injuries that the plaintiff is claiming?

Statistics:

• CRC is the third most commonly diagnosed cancer in men and women combined in the U.S.
• CRC is the second leading cause of cancer death in men and women combined in the U.S.

Estimates for 2022:

• 151,030 people will be diagnosed with CRC in the U.S.
• 52,580 people will die from CRC in the U.S.

Young-onset CRC is on the rise

• Rates for people under 50 increased 2.2% each year
• Median Age of Diagnosis: Age 66 (both men and women)
  

Screening:

All men and women without a family history, or risk factors for colorectal cancer (CRC) should begin CRC screenings at age 45, according to the American Cancer Society.

With screening, CRC is one of the most preventable cancers, and highly treatable if caught early.

If you have certain risk factors, you may need to be screened earlier than 45.

Risk Factors:

• Family history of CRC or polyps
• African American
• Have a genetic link to CRC such as Lynch Syndrome
• Have a personal history of cancer
• Have ulcerative colitis, inflammatory bowel disease, or Crohn’s disease

Types of screening chart

Symptoms: CRC often does not cause symptoms early on.  When symptoms do occur, they may include: 

• Change in bowel habits such as diarrhea and/or constipation, a change in the consistency of your stool, or stools that are more narrow than usual.
• Persistent abdominal discomfort such as cramps, gas, or pain. Feeling full, bloated, with or without  nausea & vomiting.
• Rectal bleeding.  You may notice blood in or on your stool that is bright red, or the stool may be black, tarry, or brick red.
• Weakness and/or fatigue associated with anemia (a low red blood cell count).
• Unexplained weight loss

References:

Colorectal Cancer Alliance. (2022). American Cancer Society’s Cancer Statistics Center and Colorectal Cancer Facts & Figures 2020-2022.

Hayes B., et al. (2019). Why are we missing colorectal cancer? A study investigating the cause of delays in diagnosis. BMJ Journal. 68:A190

P.S. Comment and share your experience with reviewing the standards of care to develop your delayed or missed CRC diagnosis case, while considering the “miss rate.”

In this blog, I’ll be reviewing some causes of perinatal litigation, the importance of providing care according to current standards of care, ways to mitigate perinatal liability exposure, common allegations specific to alleged injuries resulting from shoulder dystocia, and current standards of care intended to decrease professional liability exposure, and reduce the risk of iatrogenic (relating to injury or illness caused by medical examination or treatment) maternal and neonatal injury.  

Causes of Perinatal Litigation:  Findings suggest that allegations against nurses, certified nurse midwives, physicians, and/or institutions often result from a lack of knowledge or commitment to practice in accordance to current standards, guidelines, and evidence.  In other instances, care is rendered according to personal experiences, preferences, and history of practice over a long period of time during which the provider has not experienced an adverse outcome.  Moving toward a science based clinical practice environment, rather than “that’s the way we’ve always done it” is a challenge to promoting safe care (AWHONN, 2014; AWHONN, 2021).  

Ways to Mitigate Perinatal Liability Exposure:  Certainly, all adverse events are not preventable, however, practices inconsistent with current standards of care offer opportunity for the plaintiff to demonstrate a breach of the standard of care (AWHONN, 2021).  One key way to reduce liability exposure is to provide care consistent with current standards of care.  

Shoulder dystocia is a common area of perinatal litigation with common allegations including:

• Failure to accurately predict the risk of shoulder dystocia
• Failure to diagnose labor abnormalities
• Failure to appropriately initiate shoulder dystocia corrective maneuvers
• Failure to prioritize delivery of posterior arm
• Failure to perform cesarean birth
• Application of forceps or vacuum at high station, or continued application without evidence of fetal descent, resulting in shoulder dystocia
• Application of fundal pressure during shoulder dystocia, further affecting the shoulder and delaying birth, thereby resulting in maternal-fetal injuries

Standards, Guidelines, Recommendations:

• Although there are a number of known risk factors, shoulder dystocia cannot be accurately predicted or prevented (ACOG, 2017)
• When shoulder dystocia is suspected, the McRoberts maneuver should be attempted first because it is a simple, logical, and effective technique (ACOG, 2017)
• In cases where the McRoberts maneuver and suprapubic pressure are unsuccessful, delivery of the posterior arm can be considered as the next maneuver to manage shoulder dystocia (ACOG, 2017, AWHONN, 2021)
• Simulation exercises and shoulder dystocia protocols are recommended to improve team communication and maneuver use because this may reduce the incidence of brachial plexus palsy associated with shoulder dystocia (ACOG, 2017)
• The Joint Commission’s Sentinel Event Alert, Preventing Infant Death and Injury during Delivery, recommends conducting periodic drills for obstetric emergencies such as shoulder dystocia (AWHONN, 2021)

P.S. Comment and share your experience with a shoulder dystocia litigation. What were the strengths and weaknesses of the case?

References

Simpson K.R. et al. (2021). AWHONN Perinatal Nursing, 5^th ed. Wolters Kluwer

Simpson K.R. & Creehan P.A. (2014). AWHONN Perinatal Nursing, 4^th ed. Wolters Kluwer, Lippincott

The American College of Obstetricians and Gynecologists. (2017). Shoulder dystocia [Clinical Practice Bulletin #178]

Joint Commission. (2004). Preventing infant death and injury during delivery. Sentinel Event Alert Issue 30

In this blog I’ll be reviewing criminal cases, and the role Barber Medical Legal Nurse Consulting, LLC has in leveraging a successful outcome.

It is important to understand what is legally considered a crime.  A crime is any act that society considers contrary to the public good.  To be considered a crime, the act must cause harm to society.

Secondly, it is important to understand the differences between civil and criminal cases.

Civil cases involve actions that are personal in nature, causing individual harm, personal injury or property damage, and result in monetary damages.  Civil cases require proof by a preponderance of evidence. A civil verdict requires a majority of the jury to agree.

Criminal cases involve actions against society as a whole, violating the peace of the community.  This could involve homicide, assault, rape, or abuse among other things.  Criminal cases require proof beyond a reasonable doubt. A criminal verdict must be unanimous. 

Some actions can be both civil and criminal in nature. 

When Barber Medical Legal Nurse Consulting, LLC teams with a legal firm on a criminal case, we consider the elements of a crime in developing our report.  For example, the act committed, and the criminal intent.  We evaluate causation – did the act cause harm? We assess the extent of injuries, presence of any pre-existing conditions, the long-term prognosis, and develop a life care plan if needed.

Examples of criminal cases Barber Medical Legal Nurse Consulting, LLC evaluates: DWI and DUI, sexual and physical assault, child, spouse, or elderly abuse, criminal cases against individual providers and facilities, criminal environmental, any case involving a victim of a violent crime, psychiatric defenses, psychiatric issues, Medicaid, and Medicare fraud and abuse, possession of narcotics, and excessive use of force by law enforcement.

P.S. Comment and share your experience with criminal cases.  How has the element of causation influenced your case outcomes?