We often think of medical malpractice in terms of direct negligence by a physician or other health care provider, such as a surgeon making a critical mistake while performing a procedure and permanently injuring the patient as a result. Not all malpractice is about what a provider does. In many cases it is about what the provider has not done, or more precisely, what it fails to do in a timely manner.
Consider the well-documented issue of waiting times just to receive critical medical care. This is a problem that plagues both public and private healthcare providers. According to a 2016 MSNBC report, the average wait time for care at Department of Veterans Affairs (VA) facilities is about 21 days. Meanwhile, a 2014 review of hospitals in the Atlanta area are found an average wait time of 24 days for family practice doctors and 14 days for all medical specialties.
McKinley v. United States
When does a long wait time equate to medical malpractice? That is the question currently before a federal judge in Macon. The plaintiff is the widow of a man who died while under the care of the VA. She alleges the VA’s negligence, including excessive wait times for her husband to receive care, caused his death.
On August 10, the judge presiding over the case denied the VA’s motion for summary judgment on the waiting times issue. The VA argued the plaintiff could not “establish the relevant standard of care.” This is critical component of any medical malpractice case. Plaintiffs must provide the court with expert testimony not only to establish the relevant standard of care for a given healthcare scenario, but also how the defendant deviated from it to the detriment of the patient.
In this case, the widow presented two experts who testified the victim’s wait times for cancer treatment breached the standard of care. Specifically, a VA doctor referred the victim to an expert for a procedure to determine the presence of bladder cancer. The referral indicated this procedure needed to be performed “as soon as possible.” In reality, it took place about six weeks later. When the procedure confirmed cancer, the victim did not undergo surgery to remove his tumors for nearly three more months.
While the plaintiff’s experts did not provide “specific guidelines” for the maximum acceptable wait time in these types of cases, the judge said that the doctors were permitted to offer their opinions based on “their respective practices and their knowledge of” the relevant medical literature. Thus, the VA was not entitled to summary judgment on this part of the plaintiff’s negligence lawsuit.
It should be noted the judge did not rule on the merits of this or any other part of the case, which remains pending. There are multiple other negligence allegations raised independent of the issue of waiting times. Indeed, the plaintiff has also alleged the VA was negligent in failing to pursue more aggressive treatment of her husband’s cancer at the outset, and by allowing him “to be treated by a different resident physician nearly every visit he had.”