…should not be justification for a malpractice suit in my opinion. Doctor left a sponge in your abdomen? Sure. Doctor failed to keep you from succumbing to cancer (as millions of people do every year)? No way.
Matt: what if the failure to diagnose is the result of a reckless disregard for what the patient is telling the doctor. What if the doctor doesn’t bother to put together 2 and 2, and realize that you don’t have some more pedestrian problem but need more testing? What if the doctor just doesn’t care that morning and sends you on your way when a little attention and follow up might catch this before it becomes fatal?
You bring up some valid points. I am not a physician, but I have heard early cancer diagnosis is very much an art form, and that arriving to a diagnosis early enough to successfully treat the cancer is not guaranteed. I suppose I would put the case where the doctor, based on the information provided by the patient, fails to administer a standard-practice test, resulting in injury/death, in a separate category from the doctor who maybe missed a tiny signal but could not have reasonably foreseen the illness.
2006AP1566 Estate of Dale Otto v. Physicians Ins. Co.
This medical malpractice case involving two doctors, a medical clinic and their insurers, examines whether a default judgment was properly entered against an insurance company that allegedly failed to file a timely answer.
Some background: In 2003, the estate of Dale Otto and his surviving family members alleged that two physicians failed to diagnose that Mr. Otto’s gastroesophageal reflux disease had been replaced by metastic esophageal cancer. They suit named the two doctors, the clinic and two fictitious insurers.
The names of the fictitious insurers were replaced in an amended complaint with two real insurance companies, including Physicians Insurance Co. (PIC). The doctors and the clinic filed an answer in which they denied liability, but PIC was not listed in the text of the answer nor the signature block.
The attorney representing the doctors and clinic, who also had done work on behalf of PIC in the past, said his office had forgotten to include PIC on the list of answering defendants. The estate contends more than a dozen additional filings also failed to include PIC, however. After several months of further proceedings in the case and PIC’s motion for leave to file an amended answer that included PIC, the estate moved for a default judgment against PIC, which the circuit court granted. The estate also dismissed its claims against the doctors and clinic. The circuit court found PIC was liable to the plaintiffs in the total amount of $801,760, which was reduced slightly on appeal.
The court of appeals concluded that because PIC had failed to show excusable neglect for its untimely answer, the circuit court had properly entered a default judgment against PIC regardless of the timely answer by PIC’s insureds.
Since an insurer’s liability derives from the liability of its insured, PIC asserts that it would be absurd to adjudge the provider defendants’ insurer liable for their negligence when the provider defendants themselves could have litigated the matter to completion and obtained a finding of no negligence and a dismissal of the plaintiff’s complaint. PIC argues that the result of its default should at most be a finding that it had conceded providing coverage to the doctors and clinic.
The court is expected to address whether an insurer’s default should result in a judgment against it for the full amount of the plaintiff’s claimed damages where the insurer’s insureds have filed a timely answer and denied liability. From Dunn County.
Agree w/ posts indicating this outcome is VERY nitrogen rich. Please note merits of the case in chief were never tried
Also – why were the carriers named in the first place? Is this a quirk of Wisconsin law?.
Find it informative the Pltfs dropped the Docs and hospital when they caught the non-answering carrier in the toils of a procedural error (or, rather, the Defense firm for it is they who erred). Agree, whatever the award by the courts, it is the E&O carrier for the defense firm who is the proper “pocket”
I had been going to my primary care doctor for around 15 or more years. I found out later that my HMO, Health Advantage, had been paying primary care doctors to not refer their patients to specialists. I have this in writing. Therefore, I almost died of colon cancer. He never mentioned that I should have a colonoscopy. I can’t imagine how I did not know to get tested. I just never heard about it. And by age 62, after I had been in the hospital for a completely different reason, I made him very angry and he sent me to have a colonoscopy. The doctor who did the colonoscopy said she could not get past the tumor to get where my doctor said he “thought he saw something. She made an appointment with a surgeon right then but did a biopsy to make sure anyway. It had gone through my colon wall but thank God not in my lympth nodes or liver. I had been telling my doctor how extremely tired I had been and he even suggested I needed a man in my life. I had surgery to get the tumor out and part of my colon. Then I got a staph infection in the hospital and had to go right back and they had to opened me back up and then given 5 days to live. I have no family at all and my “friends” scattered like gone with the wind. Well, as you can see, I am alive. If you are interested in my story I will be glad to share it with you instead of going on with it. I had surgery on 12/10/2004. It is quite a long story. Unless someone would be interested in hearing it, I will close now.
I chose not to sue because I was and still am not mentally able to go through all of that. All of the hell I went through did make me a colon cancer patient advocate big time!
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Has Physicians Insurance written a big check to the Doctors and Clinic they insured? I smell and E&O claim!
…should not be justification for a malpractice suit in my opinion. Doctor left a sponge in your abdomen? Sure. Doctor failed to keep you from succumbing to cancer (as millions of people do every year)? No way.
Matt: what if the failure to diagnose is the result of a reckless disregard for what the patient is telling the doctor. What if the doctor doesn’t bother to put together 2 and 2, and realize that you don’t have some more pedestrian problem but need more testing? What if the doctor just doesn’t care that morning and sends you on your way when a little attention and follow up might catch this before it becomes fatal?
You bring up some valid points. I am not a physician, but I have heard early cancer diagnosis is very much an art form, and that arriving to a diagnosis early enough to successfully treat the cancer is not guaranteed. I suppose I would put the case where the doctor, based on the information provided by the patient, fails to administer a standard-practice test, resulting in injury/death, in a separate category from the doctor who maybe missed a tiny signal but could not have reasonably foreseen the illness.
Physician as God. My family doctor is the smartest and best informed doctor I have ever worked with and he can’t call them all. Tough call on these.
Here are some more details on the suit:
2006AP1566 Estate of Dale Otto v. Physicians Ins. Co.
This medical malpractice case involving two doctors, a medical clinic and their insurers, examines whether a default judgment was properly entered against an insurance company that allegedly failed to file a timely answer.
Some background: In 2003, the estate of Dale Otto and his surviving family members alleged that two physicians failed to diagnose that Mr. Otto’s gastroesophageal reflux disease had been replaced by metastic esophageal cancer. They suit named the two doctors, the clinic and two fictitious insurers.
The names of the fictitious insurers were replaced in an amended complaint with two real insurance companies, including Physicians Insurance Co. (PIC). The doctors and the clinic filed an answer in which they denied liability, but PIC was not listed in the text of the answer nor the signature block.
The attorney representing the doctors and clinic, who also had done work on behalf of PIC in the past, said his office had forgotten to include PIC on the list of answering defendants. The estate contends more than a dozen additional filings also failed to include PIC, however. After several months of further proceedings in the case and PIC’s motion for leave to file an amended answer that included PIC, the estate moved for a default judgment against PIC, which the circuit court granted. The estate also dismissed its claims against the doctors and clinic. The circuit court found PIC was liable to the plaintiffs in the total amount of $801,760, which was reduced slightly on appeal.
The court of appeals concluded that because PIC had failed to show excusable neglect for its untimely answer, the circuit court had properly entered a default judgment against PIC regardless of the timely answer by PIC’s insureds.
Since an insurer’s liability derives from the liability of its insured, PIC asserts that it would be absurd to adjudge the provider defendants’ insurer liable for their negligence when the provider defendants themselves could have litigated the matter to completion and obtained a finding of no negligence and a dismissal of the plaintiff’s complaint. PIC argues that the result of its default should at most be a finding that it had conceded providing coverage to the doctors and clinic.
The court is expected to address whether an insurer’s default should result in a judgment against it for the full amount of the plaintiff’s claimed damages where the insurer’s insureds have filed a timely answer and denied liability. From Dunn County.
So the award was not for malpractice per se but for failing to answer. These awards based on technicalities are irksome.
Thanks for the info bystander.
Thank you Bystander for the case summary
Agree w/ posts indicating this outcome is VERY nitrogen rich. Please note merits of the case in chief were never tried
Also – why were the carriers named in the first place? Is this a quirk of Wisconsin law?.
Find it informative the Pltfs dropped the Docs and hospital when they caught the non-answering carrier in the toils of a procedural error (or, rather, the Defense firm for it is they who erred). Agree, whatever the award by the courts, it is the E&O carrier for the defense firm who is the proper “pocket”
I had been going to my primary care doctor for around 15 or more years. I found out later that my HMO, Health Advantage, had been paying primary care doctors to not refer their patients to specialists. I have this in writing. Therefore, I almost died of colon cancer. He never mentioned that I should have a colonoscopy. I can’t imagine how I did not know to get tested. I just never heard about it. And by age 62, after I had been in the hospital for a completely different reason, I made him very angry and he sent me to have a colonoscopy. The doctor who did the colonoscopy said she could not get past the tumor to get where my doctor said he “thought he saw something. She made an appointment with a surgeon right then but did a biopsy to make sure anyway. It had gone through my colon wall but thank God not in my lympth nodes or liver. I had been telling my doctor how extremely tired I had been and he even suggested I needed a man in my life. I had surgery to get the tumor out and part of my colon. Then I got a staph infection in the hospital and had to go right back and they had to opened me back up and then given 5 days to live. I have no family at all and my “friends” scattered like gone with the wind. Well, as you can see, I am alive. If you are interested in my story I will be glad to share it with you instead of going on with it. I had surgery on 12/10/2004. It is quite a long story. Unless someone would be interested in hearing it, I will close now.
I chose not to sue because I was and still am not mentally able to go through all of that. All of the hell I went through did make me a colon cancer patient advocate big time!
Please do not mention my name.
“Maggie”
Little Rock, AR