What Should I Do If I Have Been Misdiagnosed?
Millions of Americans rely on their medical providers to diagnose injuries and diseases accurately. And although we hope the advice we receive is correct, that is not always the case. Some estimates suggest that nearly twelve million Americans are misdiagnosed by healthcare providers annually. So, what should you do if you’ve been misdiagnosed?
First, do not hesitate to speak with a skilled medical malpractice attorney. If you are a New York resident, note that the state’s statute of limitations imposes a deadline to initiate a medical malpractice claim. This deadline is normally 30 months after the alleged malpractice occurred. But, even 30 months is not much time when it comes to investigating and building a successful medical malpractice case.
If you believe you or a loved one suffered injury or harm as a result of malpractice, here’s what you need to know before you file your claim:
What Qualifies as Medical Misdiagnosis
Misdiagnoses are estimated to be responsible for 40,000 to 80,000 otherwise preventable deaths each year. According to a recent study published by the Journal of the American Medical Association (JAMA), medical diagnostic errors typically center on missed diagnoses, delayed diagnoses, and incorrect diagnoses of symptoms. Life-threatening conditions commonly misdiagnosed include cancer, heart attack, stroke, aortic dissection (a tear in the wall of the main artery running to the heart), and pulmonary embolism (a blood clot in the main artery running to the lungs).
However, countless variables involved in medicine mean that your diagnosis may be wrong despite the best efforts of hard-working doctors and nurses. The outcome alone does not dictate whether the doctor was at fault, which is why it is sometimes tricky to know when good faith medical treatment crosses the line into medical malpractice. So what is the difference between an honest mistake and medical malpractice?
Negligence or Good-Faith Mistake?
So, how could a misdiagnosis play out in real life? Suppose you go to the emergency room with extreme stomach pain, but instead of running tests or doing a complete examination, the doctor sends you home with an antacid. Within an hour of leaving the hospital, your appendix bursts, resulting in your death. In this case, the doctor erred by failing to properly examine you to diagnose your symptoms.
The doctor would have likely found clear signs of appendicitis had they taken the time to do some simple tests, including applying pressure on the painful area and checking for stiffened abdomen muscles. They could have ordered blood and urine tests, x-rays, CT scans, or an MRI to rule out potential issues such as kidney stones. Or, they could have had you stay for observation to monitor your condition. Any of these choices would have likely prevented your untimely and unnecessary death from a burst appendix that went undiagnosed due to your doctor’s negligence.
The Patient Is Also a Factor
The actions of the patient are also a factor. For instance, suppose the doctor did everything by the book, diagnoses your appendicitis immediately, and orders emergency surgery. The only problem is that your appendix burst six hours before you decided to go to the emergency room, at which point the damage was too severe. It’s much more difficult to argue that the doctor was at fault here because there was only so much they could do with a patient who, unfortunately, waited too long to seek medical attention.
Who Else Could Be at Fault?
A medical misdiagnosis can take place at nearly any point throughout treatment. Let’s revisit our previous example. The good news is you made it to the hospital in time, the doctor diagnosed your appendicitis correctly, and the emergency surgery was a success. After a couple of days in the hospital, you are sent home with a prescription for antibiotics to fight infection. The bad news is there was a mix-up with your prescription. The doctor missed the note in your file about potential allergies to certain antibiotics, prescribed the wrong one, and you died from an allergic reaction. Now, the doctor is back on the hook for a potential medical malpractice claim for failing to check for known issues and side effects before prescribing a medication.
But, what if the doctor wrote the correct prescription and the pharmacist filled it with the wrong medication? Malpractice can extend beyond the doctor to just about any link in the chain of medical care. In this instance, the doctor is most likely clear, but the pharmacist faces potential liability for their negligence.
Finally, what if nothing was wrong with the prescription but you decided you didn’t feel like taking the pills and died from an otherwise preventable infection? Your failure to follow through on the proper course of treatment was likely a significant contributing factor to your death.
The point is that the facts and circumstances of these cases are critical and will often determine whether you can recover damages. Knowing which details are important and how they relate to the law can be overwhelming for anyone, especially during such a difficult time. An experienced medical malpractice attorney can help you with your misdiagnosis case so you can avoid potential pitfalls and recover the damages you are entitled to under the law.
4 Elements of a Medical Misdiagnosis Claim
To bring a successful action for medical malpractice based on a misdiagnosis, you must prove four legal elements:
- Duty of Care
- Breach of Duty
#1 Duty of Care
According to the National Institute of Health, doctors must provide a “medical standard of care.” This standard means your treatment must be the same as “a minimally competent physician in the same field would do under similar circumstances.” This duty of care is usually established as part of the doctor-patient relationship.
#2 Breach of Duty
You must also prove the doctor failed to fulfill their duty of care. As previously stated, not every instance of misdiagnosis counts as medical negligence. The facts and circumstances of your misdiagnosis play an essential role in determining whether a misdiagnosis rises to the level of malpractice. To prove a breach of duty, you must demonstrate that a reasonably competent doctor in the same position would have acted differently.
A misdiagnosis that does not cause harm does not rise to the level of a valid medical malpractice claim. You must prove that the doctor’s incorrect diagnosis directly caused the injury suffered. For example, let’s say your doctor misdiagnoses you with strep throat when you actually have the flu, and you get hit by a bus when you walk out of the doctor’s office. While tragic, your death was not related to the misdiagnosis of strep throat and, therefore, is highly unlikely to result in a successful malpractice claim.
Finally, you must prove that the misdiagnosis resulted in actual damages. The definition of damages includes both economic (lost wages) and non-economic (pain and suffering). But, you must show those damages exist. Without actual damages, there is no claim for medical malpractice.
What Should I Do If I Have Been Misdiagnosed?
It is essential to always trust your instincts about your health. You alone are your greatest advocate! Remember: Although medical professionals have extensive training, they cannot know precisely how you feel. Trust your instincts if your condition does not improve despite your doctor’s recommended treatment. Whether you return to your regular doctor or seek a second opinion from another provider, ignoring your health should never be an option.
Once you better grasp your medical situation, you can explore your possible legal options. One factor to remember is that medical malpractice claims, like most lawsuits, have a statute of limitations or a limited timeframe after the misdiagnosis to file a claim for damages. The statute of limitations for medical malpractice claims varies by state and can sometimes be as little as one year! With that, do not hesitate to contact a medical malpractice attorney to get your case moving. Most lawyers will provide a no-cost legal consultation to discuss the circumstances of your misdiagnosis.
Speak with an NYC Medical Malpractice Attorney
While most medical professionals do their best to provide accurate information and act in the best interests of their patients, mistakes can and do happen every day. And, as you can see, malpractice cases are rarely simple.
If you are a New York resident, keep in mind that the state’s statute of limitations imposes a deadline to initiate a malpractice claim. This deadline is normally 30 months after the alleged malpractice occurred. But, even 30 months is not much time when it comes to investigating and building a successful medical malpractice case.
Also note that before you can even file a claim, a careful review of your medical records and other documents is required. If you believe you or a loved one suffered injury or harm as a result of malpractice in New York, contact our team at Silberstein, Awad, and Miklos today for a free, no-obligation consultation with one of our medical malpractice attorneys.