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When a delayed diagnosis and employment collide

Posted by Scott M. Peterson | Jun 03, 2015 | 0 Comments

We've seen this before.  The call comes in from (we'll call her) Janice.  Janice was a high level employee with a mid-sized company (100-300 employees), earning a good salary after years of dedication.  Six months ago Janice felt a something, prompting her to see her doctor.  As often happens, her appointment seemed more like a race to the exit, and at the time her doctors “couldn't” find anything wrong.  She's told there's nothing to worry about.

Flash forward six months.  Janice is still concerned and seeks a second opinion. This time she sees the concerned look on her doctor's face immediately.  She's sent for further testing (left out the last time) and it is revealed that she has cancer.    The treatment may have a significant likelihood of success, but will require a prolonged treatment regimen.

Janice tells her boss what she's going through, and she's completes the necessary paperwork for her leave under the Family and Medical Leave Act (“FMLA”).  Given her history with the company, the last thing she is (or should be) worried about is her job safety.  Unfortunately, after three months of treatment Janice is told that she's exhausted her 12 weeks of FMLA leave, and while the company is sorry, they can no longer hold her position.

Janice calls us, understandably upset.  Her family has bills piling up and doesn't know what to do.

If You Are Fired After a Medical Leave There May Be Hope

In this example Janice may have some hope.  First we'll deal with her employer.  While they may have correctly determined that her FMLA leave was exhausted, they may also have violated the law by not engaging in an “interactive process” with her to determine if/when she would be able to return.  Often employers terminate employees on the day that their FMLA approved leave expires – only to learn that they may have legal obligations outside of the FMLA, and may have discriminated against her based upon a disability.  For Janice there may be some hope.

Sometimes the medical industry needs to stop and slow down

Janice's other issue is the unreasonable six month delay in diagnosis of her medical condition.  Once again, unfortunately, this is a situation that we know too well.  While advancements in medicine seem to make every day conditions easier to diagnose, we know that practically this is often not the case.   And why does this happen?  Because sometimes doctors, nurses and physician's assistants are too busy to adequately pay attention to the patient in front of them.  And when this happens they may miss or overlook something that is right in front of them.

Once again fortunately there are options for Janice.  She may have a legal action against the physician practice that missed the diagnosis, if it was something that they should have caught with reasonable inspection.  And while a medical malpractice lawsuit is not something that Janice particularly wants at this point it could help to 1) prevent this same thing from happening to someone else and 2) provide her family with some much needed answers as to why this happened to her in the first place.

In the real world things aren't always neat

We'd all like to think that we can handle whatever comes our way.  Unfortunately this is not always the case.  Things get messy in the real world, and aren't always neat and tidy.  But that's okay if you know where to turn for help.  When a medical diagnosis collides with an employment problem, there are places to turn.

If you have questions regarding a late medical diagnosis or employment issue following a medical leave give us a call.  We're happy to help.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.


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