In the United States, the most common type of medical malpractice seen is that of a misdiagnosis. In fact, according to AARP, 20 percent of serious medical conditions are misdiagnosed, and in a JAMA Internal Medicine article, it was found that 12 million Americans are misdiagnosed annually.
Misdiagnoses can lead to permanent disability, and in some cases, even death. When a person suffers a life-threatening condition but they are not diagnosed properly, they may not receive the proper treatment in time.
Despite numerous studies showing the prevalence of misdiagnoses in the medical community, the issue continues to grow. As a patient, it is important to understand how a misdiagnosis occurs, what you can do to protect yourself, and your rights if you suffer injury or lose a loved one to a misdiagnosis.
What Is a Misdiagnosis (Failure to Diagnose)?
A misdiagnosis, sometimes called a failure to diagnose, occurs when someone’s illness, injury, or condition is not properly diagnosed. Not all instances of misdiagnosis are malpractice, however. Sometimes, a physician can misdiagnose a patient but not be negligent or liable for malpractice. Instead, a physician’s failure to diagnose must lead to delayed care, improper treatments, no treatments, and cause serious injury. Furthermore, it must be shown that the physician breached his or her duty of care in that failure to diagnose.
A misdiagnosis may include:
- Diagnosing a patient with the incorrect illness, condition, or injury;
- Missing the opportunity to diagnose completely;
- Delaying the proper diagnosis; or
- Failing to recognize complications that may aggravate an existing condition, illness, or injury.
How Can You Prove a Misdiagnosis Was Medical Malpractice?
When a patient wants to hold a physician accountable financially for a misdiagnosis, they must establish a few primary conditions first. Without all these conditions met, a patient would not have a case for medical malpractice – which means they are not eligible to receive compensation.
The conditions that must be met for a patient to sue his or her physician for malpractice include:
A Doctor-Patient Relationship Was Established
First, you must establish that a doctor-patient relationship existed. That means the physician you are claiming misdiagnosed you and is guilty of malpractice was the doctor treating you. If your physician casually mentions your case to another physician, and that physician offers his opinion to the other physician, the one offering an opinion is not guilty of malpractice. You did not have a doctor-patient relationship with the secondary physician. To prove a relationship existed, you will need to submit medical bills showing that the physician was treating you, medical records indicating you saw the physician, and any other documents you have proving you were under the care of that physician at the time.
The Physician Breached Their Duty of Care
Just because a physician misdiagnosis a patient doesn’t mean they are guilty of malpractice. Instead, you must show that they breached the standard of care, which led to the misdiagnosis and ultimately was the cause of the patient’s damages.
For example, a physician does not order the proper diagnostic testing before diagnosing a patient. Because other physicians in a similar field most likely would have ordered diagnostic testing to rule out a condition or to confirm a diagnosis, that physician breached the acceptable standard of care.
If, however, the doctor orders all of the necessary diagnostic testing, and the tests are inconclusive. This leaves the physician to use his or her judgment in the diagnosis, and it was wrong – that physician may not have breached the standard of care.
Proving the breach requires witness testimony from other physicians who work in a similar field of medicine and have similar backgrounds. Therefore, if you were accusing a cardiologist of malpractice, other cardiologists would have to examine the evidence and testify as to whether they feel their colleague breached the standard of care.
One side will present expert witnesses saying there was a breach, and the other saying there was no breach. Ultimately, it comes down to the power of the remaining evidence, and which side has a more convincing medical expert.
The Breach Was the Direct Cause of the Patient’s Damages
A misdiagnosis must lead to damages. Whether that means increased medical care costs, a decreased lifespan, or a serious injury, you must show that their misdiagnosis caused you harm. If you did not have unnecessary tests and the correct diagnosis was found without any changes in outcome, you do not have a claim for malpractice.
Furthermore, if the misdiagnosis has nothing to do with your current medical issue, you cannot hold a physician liable for something they did not cause.
You will need medical experts once again to tie together the relationship between your condition, damages, and the physician’s breach of care.
Were You the Victim of Medical Malpractice? Speak with a Local Attorney Right Away
If you or a loved one suffered harm because you were misdiagnosed, speak with a malpractice attorney in your area right away. Not all cases of misdiagnosis result in a malpractice claim, and the only way to know if you have a claim or not is to speak with a local attorney that has experience with malpractice lawsuits.
Attorney Seth Gladstein from Gladstein Law Firm, PLLC, can assist you with your case. We will meet you for a no-obligation case evaluation. At that time, we will review your medical records and the misdiagnosis incident, and help determine if you have a case.
If you do, we will aggressively fight for your right to compensation and hold the physician responsible for their negligent behavior to prevent it from happening to other patients.
To explore your legal rights, schedule your appointment now by calling us. You can also request more information about our malpractice lawsuits or consultation process by filling out our online contact form.