Failing to diagnose a medical condition is sometimes a life-threatening error. Doctors, nurses, lab techs, and other medical professionals have a higher duty of care to their patients because of their training.
A misdiagnosed victim or their family can hold medical professionals responsible for injuries or the death of a loved one who suffered a misdiagnosis.
Medical Malpractice, Misdiagnosis, and Negligence
Misdiagnosis is just one of the medical malpractice incidents that a victim might suffer. The misdiagnosis could be a pure accident caused by negligence, or it could be because of gross negligence on the medical professional’s part.
Sometimes a doctor or another medical professional makes an error in diagnosing. While negligent, the doctor or medical professional did not purposely misdiagnose the patient.
In other cases, a doctor might be found grossly negligent, such as misdiagnosing a condition because the doctor was under the influence of drugs or alcohol or purposely misrepresented their experience.
Elements of a Medical Malpractice Claim
Your Albany medical malpractice attorney will investigate your case to determine whether you have a malpractice claim for misdiagnosis.
For a viable medical malpractice case, you must prove:
- The medical professional owed you a duty of care. You do not have to be the doctor’s regular patient. The doctor could be filling in for your doctor, or it could be an emergency room doctor. A medical professional’s duty of care is higher than the standard of care of any ordinary citizen because of their training and experience.
- The medical professional violated the standard of care in your case. Your medical malpractice attorney will show the court how the medical professional violated the standard of care and will show a jury a doctor’s normal standard of care.
- You suffered injuries because of the violation of the standard of care (negligence). Injuries could include physical, emotional, and financial.
- Your injuries caused damages, such as medical expenses and pain and suffering.
What to Do if You Suspect Medical Malpractice
Determining medical malpractice, especially a misdiagnosis, is very complicated. Your doctor might have told you that nothing was wrong or might have told you that you have a condition. But you do not feel right, or the condition mentioned does not line up with typical symptoms.
If you feel as though the doctor is ignoring you or not correctly diagnosing your condition, you can:
- Obtain a second opinion. You do not have to notify your current doctor that you seek a second or third opinion. If you decide to switch doctors, you do not have to give your doctor a reason for leaving.
- Obtain copies of your medical records. They will contain information about your medications, the results of your tests, treatments you have received thus far, and other information. Let your attorney know if you have trouble obtaining copies of your medical records. A doctor or medical entity cannot withhold records from you, although it can charge you for making copies of those records.
- Create a file of medical bills. If you are missing any, try to get copies. You will need them to prove economic damages.
- Create a notebook to document your concerns, the treatment you received, medications, and how you physically feel. Once you start seeing another doctor, keep taking notes to compare the differences. Note any physical or emotional changes in your condition, especially once you have the correct diagnosis. Documenting your journey will help your legal team investigate your misdiagnosis claim.
- Contact an Albany medical malpractice attorney.
Why You Need a Medical Malpractice Attorney
It is difficult to win a medical malpractice lawsuit without an experienced Albany malpractice attorney. The doctors and hospitals will hire high-priced attorneys to represent them. You need someone on your side who understands the medical field and its terminology and someone who can retain the expert witnesses you will most likely need.
An experienced medical malpractice attorney has the resources to:
- Advocate for your needs, including demonstrating the link between your medical professional’s negligence and your injuries;
- Hire expert witnesses to testify as to your misdiagnosis;
- Testify to the extent of your injuries and that you might not have had those injuries had the medical professional not been negligent; and
- Testify to the standard of care expected of medical professionals in the same situation.
A capable and experienced legal team can also review and understand your medical records to determine whether the diagnosis was incorrect or late. Always ensure the medical malpractice attorney you choose has extensive experience and connections in the medical field. It is often difficult to find medical professionals to testify against another medical professional, even if the negligent professional is a stranger.
Types of Misdiagnosis
When most people think of medical misdiagnosis, they think of a medical professional making an incorrect diagnosis. Misdiagnosis also includes diagnosing an issue too late or not diagnosing it at all.
However, many factors lead to misdiagnosis, including:
- A medical professional denies care to a patient. The medical professional might even go so far as to say that your problem is “all in your mind.”
- Not recognizing symptoms.
- Confusing the symptoms of one disease or condition with another disease or condition with similar symptoms.
- Failing to obtain all of the information from the patient needed to make a correct diagnosis.
- Failing to follow up with the patient.
- Failing to order tests.
- Ordering the incorrect tests.
- Misinterpreting tests and lab results.
- Reading the wrong patient’s chart.
- Technical errors during the testing.
- Corrupted test results.
- One medical professional fails to notify another of completed test results.
- Failing to follow up on test results.
- Does not give all diagnoses proper consideration because they are “rare.”
- Failing to make a referral to a specialist at all.
- Failing to make a timely referral to a specialist.
- Failing to monitor a patient, whether during the diagnostic phase or after a diagnosis.
Recovering Compensation After a Misdiagnosis
A misdiagnosis could turn short-term issues that eventually clear up with the proper diagnosis and care into long-term or fatal conditions.
The type of compensation you recover depends on several factors, including but not limited to:
- Whether the medical professional was grossly negligent. You could recover additional compensation if the court finds that the medical professional’s actions or inactions were grossly negligent or intentional.
- The severity of the condition at the time of diagnosis. A more severe condition is easier to spot, but it also means that you could suffer more severe injuries because of a misdiagnosis.
- The extent to which the condition was made worse by the misdiagnosis.
- The amount of pain and suffering caused by the misdiagnosis, including emotional distress.
- Whether the misdiagnosis caused permanent disabilities or death.
In most cases, a misdiagnosed patient can recover economic and non-economic damages. Both types are compensatory damages that the court orders in an attempt to make the victim whole again. While the money does not repair the damage or bring back a loved one, it significantly reduces the financial stress you might find yourself in because of the misdiagnosis.
Sometimes referred to as special damages, economic damages have a monetary value and include:
- Medical expenses, including surgeries, doctors’ appointments, follow-up appointments, prescriptions and medications, cognitive therapy, psychological therapy, occupational therapy, physical therapy, hand controls for your vehicle, and updates to your home to make it accessible.
- Wages, including current wages and loss of future earning capacity. If the misdiagnosis caused life-long disabilities, you could recover what you would have earned if you kept working until your retirement.
- Death-related expenses if you lost a loved one because of a misdiagnosis, including funeral and burial expenses, cremation expenses, and probate expenses.
Sometimes referred to as general damages, non-economic damages do not have a monetary value and include:
- Pain and suffering, including emotional distress.
- Loss of quality of life if you have to make life-long changes, such as taking prescription medications or using ambulatory aids for the rest of your life.
- Loss of companionship if you can no longer enjoy spending time with your family or attending family activities and events.
- Loss of consortium if you can no longer enjoy a physical relationship with your spouse.
- Loss of use of a body part, such as an arm or leg.
- Loss of use of a bodily function, such as bladder control or your eyesight. If the misdiagnosis is cancer, it could spread to various organs, thus preventing them from working properly—or at all.
- Inconvenience if you have to hire someone to do the chores you usually do, including grocery shopping, lawn maintenance, house cleaning, and home repair and maintenance.
- Excessive scarring and disfigurement. For example, a surgeon amputates the wrong limb.
- Amputation of a digit or limb because of a misdiagnosis.
What Is the Dollar Amount for Various Damages?
No attorney can place a dollar amount on damages for any case until they investigate the case and discuss your losses with experts in the medical field. The compensation you deserve depends on several factors, including the severity of your injuries, the damages your family sustained, and even whether the case settles or goes to court.
In some cases, those who go to court recover more compensation than those that settle; however, there is no guarantee that you will win a court case, even if the medical professional’s insurance offers a settlement.
Your attorney can tell you how much similar cases are worth. Since no case is exactly the same, no lawyer can promise a specific amount.
How Much Does It Cost to Retain a Medical Malpractice Attorney?
Sometimes, people try to handle their own medical malpractice cases because they believe they cannot afford an attorney. However, most medical malpractice attorneys offer free case evaluations. Plus, an Albany medical malpractice attorney usually offers free case evaluations and does not get paid unless you win your misdiagnosis case.