43 Trial Lawyer • Fall 2023 thorough differential diagnosis. They did not prioritize and rule out the known deadliest potential cause of Sloan’s signs and symptoms of low HCT and flank pain: internal bleeding from rib fractures. Differential diagnosis is a physician’s process of gathering available evidence to form a clinical picture of the patient, formulating and prioritizing a list of potential causes of the patient’s presenting signs and symptoms, and taking steps to rule out those potential causes. The concept of differential diagnosis is medical school 101. Physicians are trained to consider the differential diagnosis of each patient when gathering clinical information. The differential diagnosis can include any number of causes, but there is a critical step in the process: consider and rule out anything on the differential that could kill the patient. As we told the jury, “When in doubt, rule it out.” The physician must assume the patient has a potentially fatal cause until proven otherwise. Oftentimes, the differential exists only in the mind of the physician, unless they document their thought process. Here, the hospitalists documented only that Sloan’s acute drop in HCT was likely due to a combination of anemia and gastrointestinal bleeding. In these types of cases, the defense will argue the plaintiff has the benefit of hindsight. The plaintiff already knows the patient’s bad outcome, but the defendant physician was using his clinical judgment, in real-time, to try to figure out what was wrong with the patient from a vast universe of possibilities. Legal standard This argument has intuitive appeal, but it is flawed. Foreseeability is the legal standard, not hindsight. Every negligence case involves a retrospective analysis of what the defendant knew, or should have known, at the time of the negligent act or omission. Furthermore, it requires us to re-frame the case and emphasize the defendant physician’s failure to conduct a thorough differential diagnosis in realtime, using reasonable foresight, to rule out known potentially fatal causes, rather than accusing the physician in hindsight for failing to pinpoint the cause of the patient’s abnormal signs and symptoms from a vast universe of possibilities. The significance of the concept of differential diagnosis cannot be understated. Once we are comfortable talking in terms of differential diagnosis, rather than failure to diagnose, we can lose our concern about any defense that involves diverting the issue to what is the most common cause, and instead focus on how and why an inadequate differential diagnosis occurred. Conducting a thorough and complete differential diagnosis requires the physician to follow up on known, potentially fatal causes of the patient’s presenting signs and symptoms. Doing so will almost always result in saving the patient from catastrophic injury or death, as was the case with Sloan. The patient’s flank pain, after falling, and his low HCT were reasoned away by the doctors with the most common potential causes, but there was a potentially fatal cause they had to admit was on Sloan’s differential diagnosis that was not followed up on: internal bleeding from rib fractures. Sloan’s clinical picture simply did not correlate with normal chest x-rays. A thorough and complete differential diagnosis should have included a CT scan of Sloan’s chest/ abdomen or a rib series and would have more than likely saved Sloan’s life. This verdict also marked the end of a more than 10-year legal saga. Savage and I were pleased to bring closure to the Sloan family after all those years. Stephen Voorhees handles medical malpractice cases at Forum Law Group LLC, 1 SW Columbia St., Ste. 1850, Portland, OR 97204. He contributes to OTLA Guardians at the Guardians Club level. He can be reached at stephen@forumlawgroup.com or 503-445-2100.
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