The Court also disagreed with the defense’s assertion that the patient should have come in for a follow-up sooner. It noted that Dr. W’s second mistaken diagnosis of gastroenteritis superseded the delay in scheduling an earlier follow-up consultation, or obtaining a fasting blood draw. Having enlisted the assistance of the physician on a second occasion, and having told her again of his symptoms, the patient was entitled to accept her diagnosis and go home.

The Court denied the contributory negligence jury instruction, and remanded the case back to the trial court. However, Dr. W ultimately decided to settle out of court prior to the case going to trial again.

Protecting Yourself


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Patients do have a responsibility when it comes to their own healthcare, but their responsibilities are broad and based on common sense: report symptoms accurately, ask questions, understand the doctors’ instructions, follow those instructions. Patients are not responsible for second-guessing their healthcare providers, or detecting inaccurate diagnoses or poor medical advice.

The physician in this case made several errors: diagnosis errors when she misdiagnosed the patient (twice) with essentially a stomach bug, and communication errors when she did not convey urgency to the patient in getting the blood work done, which would have revealed the diabetes. Dr. W should have taken into consideration the patient’s family history (maternal grandmother) of diabetes, as well as the marked weight loss since the last time she had seen the patient.

Remember to always consider family history when making a diagnosis, and be sure to convey urgency if a patient needs blood work done on a more immediate basis.