To file a lawsuit for damages due to a misdiagnosis, there are a few things you need to consider. Primarily, you will need to show that you or a family member suffered compensable harm because of the incorrect diagnosis. There are other pieces to consider, though, so reach out to our medical malpractice lawyers at Kopfler & Hermann to discuss the possibilities.
A physician has a duty to obtain a patient history, to perform an examination, refer out to specialists, refer out for tests, receive the test, and to evaluate them. They usually perform a differential diagnosis where they must rule out the more serious conditions first.
For example, if somebody comes to the ER complaining of chest pain, it would be easy to say they have indigestion and to take some Rolaids. But indigestion is not a serious event, as opposed to a heart attack. A competent physician would run an EKG or enzymes test to determine if a heart attack had occurred. A misdiagnosis claim means the health care provider made a diagnosis, but it was the wrong one.
In this case, the plaintiff must show that the misdiagnosis resulted in harm. As another example, a woman who is concerned about a lump in her breast may express concern to her OB-GYN, who then says it is a benign growth and nothing to worry about. If the patient does not trust the physician’s opinion, she might seek out another specialist. She may find out a few days later that the first doctor made a mistake and that she had a cancerous tumor that could be treated. She may think the first doctor committed malpractice, but in a professional negligence case, it is incumbent on the plaintiff to show not only that there was a misdiagnosis, but that it caused the harm.
If the time difference between the two opinions was very short, there would not be a medical malpractice case because that delay did not lead to any added harm beyond what was already present. However, if they waited years before they learned the truth, and the cancer was no longer treatable, then there might be a malpractice claim.
It depends on the extent of the injury. Some patients have already decided they do not want to go back to the original doctor who missed the diagnosis because they have lost trust, and fear something else may go wrong. Some medical professionals may say they did nothing wrong, or that there was a risk in the procedure the patient signed on for. In rare situations, some will recommend that the patient seek other physicians.
For example, an orthopedic surgeon may encounter a mishap during a procedure where a vein is damaged, and they refer the patient out to a vascular surgeon. If it is clear that something went wrong, the patient might talk to their doctor in the recovery room, but it is unlikely that many of them would stay with that same doctor moving forward.
It is not always obvious if you have a misdiagnosis lawsuit, but if you or a family member were harmed because a condition was not diagnosed the first time, please call our personal injury attorneys. We stand firm in fighting for your rights, and compensation.
