Can I sue my doctor for misdiagnosis? When it comes to medical misdiagnosis cases, medical malpractice misdiagnosis and delayed diagnosis, you would think that a failure to diagnose and misdiagnosis of an illness or injury would be the basis of any medical malpractice lawsuit. Truth be known, however, physician misdiagnosis on its own is not necessarily medical malpractice. Furthermore, not all diagnostic errors necessarily mean that you will have a valid medical malpractice claim. Even highly experienced and competent doctors make diagnostic errors. Instead, the doctor misdiagnosis or failure to diagnose must result in improper medical care, delayed treatment, or no treatment, which in turn results in either causing or permanently aggravating the patient’s medical condition in order for the malpractice to be even actionable.
Can I sue my doctor for misdiagnosis? Can I sue my doctor for wrong diagnosis? A misdiagnosis case may involve a wrong diagnosis, a missed diagnosis, a delayed diagnosis, or a failure to recognize complications that change or aggravate an existing condition. Sometimes a doctor misdiagnosis may involve a doctor diagnosing one condition correctly but misdiagnosing another condition or failing to realize that there is a second diagnosis that needs to be made.
Regardless, in order to have a proper medical malpractice claim for misdiagnosis or failure to diagnose, the following three elements must be present.
Can you sue for misdiagnosis? When it comes to medical misdiagnosis cases and delayed diagnosis medical malpractice, the first element that must be shown in a medical malpractice claim is that the patient must show that the doctor owed a legal duty of care to a patient, which means that the patient must first be able to demonstrate that a doctor-patient relationship existed at the time the alleged medical malpractice occurred.
To do so, one way to prove this is to show that you hired the doctor and the doctor agreed to be hired. For example, you can’t just sue a doctor you overheard giving advice at a party. This clearly isn’t a doctor-patient relationship. If a doctor began seeing you and treating you, however, then it would be easy to prove a physician-patient relationship existed. The issue of whether or not the relationship actually existed arises where a consulting physician did not treat you directly.
Another way to show the relationship between a doctor and a patient is one that is voluntary and usually entered into by agreement. Some things that can be used to support a finding that a doctor-patient relationship existed at the time of the alleged malpractice are evidence, such as documents and testimony, showing that:
On that note, it is a good idea for a patient to obtain a copy of medical records showing the course of treatment, from beginning to end. Doing this will go toward proving the existence of the doctor-patient relationship.
The second element in a medical malpractice claim is that the doctor violates their standard of care. In treating a patient, a doctor must use the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge that is available to the physician. Another way to describe the standard of care is to say that it is based on the customary practices of the average physician, i.e., what the average physician would customarily or typically do in similar circumstances. Accordingly, a doctor whose conduct falls below this standard of care can be said to have committed medical negligence.
As stated earlier, a doctor misdiagnosis, delayed diagnosis, or doctors giving wrong diagnosis is not itself evidence of negligence. Oftentimes, skillful doctors can and sometimes do make diagnostic errors even when using reasonable care. The key is determining whether the doctor acted competently, which involves an evaluation of what the doctor did and did not do in arriving at their diagnosis. This means looking at the “differential diagnosis” method the doctor used in making treatment determinations.
Differential diagnosis is a systematic method used by doctors to identify a disease or condition in a patient. Based upon a preliminary evaluation of the patient, the doctor makes a list of diagnoses in order of probability. The physician then tests the strength of each diagnosis by making further medical observations of the patient, asking detailed questions about symptoms and medical history, ordering tests, or referring the patient to specialists. If everything is done right, theoretically, a number of potential diagnoses will be ruled out as the investigation progresses, and only one diagnosis will remain at the end. However, given the uncertain nature of medicine, this is not always true.
Sometimes, after further investigation, the doctor will discover other information that will cause them to add to the differential diagnostic list.
In a doctor’s misdiagnosis or medical malpractice case based on diagnostic error, the patient must prove that a doctor in a similar specialty, under similar circumstances, would not have misdiagnosed the patient’s illness or condition. In a practical sense, this means proving one of two things when it comes to medical misdiagnosis cases:
Errors in Diagnostic Tests
Sometimes a doctor fails to correctly diagnosis a condition because they relied on inaccurate results from laboratory tests, radiology films, or other types of tests. This can happen in one of two ways:
Although the doctor might not be liable for medical malpractice in this situation, another person may be, such as the nurse, assistant, or technician that may have misread the slide. Again, the patient must prove that the error was the result of negligence.
If you want to learn more about what is or what is not medical malpractice, please review
The third and final element in order to prove medical malpractice is showing that the diagnostic error caused harm. Specifically, the patient must also prove that the doctor’s negligent misdiagnosis or delayed diagnosis caused the patient’s injury or condition to progress beyond where it normally would have had the correct diagnosis been made in a timely manner, and that this progression had a negative impact upon treatment.
For example, because of a delayed cancer diagnosis, the patient had to undergo a more severe treatment (such as chemotherapy) or the patient died because the cancer had spread and no longer responded to treatment. Should a doctor diagnose a patient with a condition or illness that the patient does not have, the patient may also be able to prove harm in the form of anxiety, stress, medical problems, and expenses due to unnecessary treatment.
There are many ways that a physician can make a diagnostic error. This includes:
Proving failure to diagnose can be very difficult for many reasons.
One reason is that any medical problem you had when you first went to the doctor was likely to cause you some harm even if promptly diagnosed and treated. If the harm you suffered would have occurred even if the doctor had not failed to diagnose your medical problems, you cannot claim that his negligence caused your harm.
Two, you may not have seen the right specialist. More than one body system can give the same symptoms, making it difficult to correctly diagnose a condition. For example, a dermatologist cannot be expected to identify and treat an illness originating from the digestive system.
Three, you withheld information from the doctor or gave them misleading information to which might have aided or hindered the doctor’s ability to diagnose the problem. For example, if you tell the doctor that you don’t smoke even though you actually did, than the doctor may not be able to properly diagnose that you have developed lung cancer or other respiratory illnesses.
Four, if the doctor’s mistake was one that a reasonable doctor would make anyway, that doctor may then have acted negligently and have not committed actual medical malpractice. Often when a doctor fails to diagnose a medical problem, they may mistake the problem for something else and attempt to treat that. Likewise, if the medical problem is extremely rare, unknown, or difficult to identify, than a proper diagnose may not be possible anyway.
Five, you need to watch the statute of limitations in a misdiagnosis case. In any medical malpractice case, plaintiffs need to be mindful of time limits and getting the misdiagnosis lawsuit filed. In New York, the medical malpractice statute of limitations typically allows victims 2.5 years, or 30 months, from the time of the injury to file a medical malpractice claim, however, there are a number of exceptions to this timeframe.
Can you sue for misdiagnosis? Yes. However, in order to do so, you need to prove that a doctor-patient relationship existed at the time of the alleged error in diagnosis, the doctor’s error rose to the level of negligence, and the patient suffered harm due to negligence.
A: Can you sue an emergency room for misdiagnosis? Yes. Just because the medical facility is an urgent care setting, doesn’t mean that they are less responsible or that the standard of care lessens. One of two must be shown. Either:
When it comes to failure to diagnose medical malpractice, a misdiagnosis doesn’t necessarily mean malpractice. Instead, misdiagnosis or failure to diagnose must result in improper medical care, delayed treatment, or no treatment, which in turn results in either causing or permanently aggravating the patient’s medical condition in order for the malpractice to be even actionable.
Can I sue a doctor for misdiagnosis? Can I sue my doctor for the wrong diagnosis? Absolutely! If a doctor gave you the wrong diagnosis and your condition got worse as a result of that misdiagnosis, you may have a valid misdiagnosis lawsuit.
Can I sue a hospital for misdiagnosis? Can I sue a hospital for the wrong diagnosis? Can you sue a hospital for giving wrong diagnosis? Can you sue a hospital for misdiagnosis? Can you sue a hospital for not diagnosing? You may be able to. However, in most cases, only the primary physician (your doctor) can be sued for misdiagnosis. This is because most doctors are independent contractors, not employees of the hospital, so the facility can’t be held legally responsible for the doctor’s negligence.
Can I sue a doctor for misdiagnosis? A misdiagnosis lawyer or medical misdiagnosis attorney can help you identify whether or not you may have a valid medical malpractice claim and what the chances you have of being successful.
When it comes to medical misdiagnosis lawyers, you’ll need an effective and capable delayed diagnosis lawyer. At the Law Office of Yuriy Moshes, we are experienced and knowledgeable when it comes to medical misdiagnosis cases and filing a misdiagnosis lawsuit. We represent patients in the greater New York City area including all its boroughs, including Manhattan, Brooklyn, Queens, the Bronx, and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.