How does Medical Malpractice happen – part I

How does Medical Malpractice happen – part I

How does Medical Malpractice happen – part I 150 150 Lauren Ellerman

Humans are curious creatures, and the thousands of Virginians who call our Roanoke legal office each year to ask about a medical trauma or potential medical malpractice will often ask out loud – “How does this happen in American Healthcare?”

It is an excellent question. One that have I spent almost twenty years considering on a daily basis. How do millions of medical errors happen every year?

  • How does a surgical mistake or misdiagnosis cause paralysis?
  • How does a known risk of surgery get ignored in a pre-operative conversation?
  • How does a tumor, readily seen on an expensive scan, never get mentioned to a patient?
  • How does a condition get misdiagnosed?

In this brief article series, I (Lauren Ellerman) will attempt to explain what we believe the three leading causes of medical malpractice are in Virginia hospitals, long term care facilities and doctors offices. This not a research paper, rather a reflection on our office’s experiences, and the facts we have uncovered in the hundreds of malpractice cases we have successfully handled since our firm’s opening 25+ years ago.

The three most frequent causes of Medical Malpractice in Virginia are:

I. Inadequate differential diagnosis 

II. Lack of Experience with a procedure

III.  Broken system

This brief article will only address Cause #1 – Inadequate training  / knowledge of the provider – leads to incorrect differential diagnosis

Let’s start with an analogy.

I used to handle criminal and domestic law cases but would be committing an ethical violation if I did so today without additional training or help. Why? Because while I am licensed to handle these cases, I have not continued with the training, updates on the law, etc. I would miss all the important facts, red flags, and opportunities to serve my client.

Medical providers however – rarely decline to treat a patient, even when they have no experience with the condition. Nor do they admit when they don’t know how to help.

If I were queen, a medical provider who does not readily come to a diagnosis of an acute condition would say “Gosh, I’m stumped here. I am not sure what is causing your abnormal vitals / pain / dizziness / etc. but I am going to do everything I can as soon as I can to find out what is.”

Instead, the opposite happens. They often pretend they do know what the issue is, without excluding the most dangerous or worrisome cause of the condition. We see this everyday.

Doctors call their decision making process about a condition – their differential diagnosis. Done correctly, it is a method of analysis of a patient’s history and physical diagnosis to arrive at the CORRECT DIAGNOSIS.

But often we see a very short, weak, or inadequate analysis of either the history, or physical presentation – so the diagnosis is incorrect and little is done (testing, research, consultation, additional discussion) to reach a correct one.

Almost every case I have set for trial in 2023 follows this pattern.

  • doctor waits to see whether patient gets worse before any fast action – patient gets worse, treatment too late
  • doctor makes no follow up plan – takes wait and see approach
  • doctor doesn’t admit to patient that he or she is unsure or unclear of the diagnosis
  • doctor doesn’t spend significant time in history or examination of patient
  • doctor doesn’t give weight to facts obtained in examination or patient history
  • doctor doesn’t dig, probe, evaluate to get the real answers
  • doctor doesn’t see abnormal vital or change in condition as warning sign
  • doctor dismisses new condition as being not a big deal
  • doctor doesn’t bother to ask direct and probative questions of patient, nurse or family to dig deeper

This inadequate differential diagnosis leads to misdiagnosis which tragically can lead to permanent injury and or death. 

Scary isn’t it?

Stay tuned as we discuss the second and third causes of malpractice and in conclusion, what’s next – can malpractice be avoided by patient advocacy?

About the author

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at

Back to top