What if your doctor makes the wrong diagnosis? Can he or she be sued for negligence? Is it medical malpractice? If so, what will you and your attorney need to prove? Read on for the answers.
Just like in any other personal injury case, it is always the plaintiff’s burden in a medical malpractice case to prove that the doctor was negligent. In medical malpractice cases, courts often define negligence as a physician’s failure to exercise the degree of care and skill of the average physician who practices the defendant’s specialty, taking into account the advances in the profession and resources available to the defendant.
A medical diagnosis is simply an identification of a medical problem. With respect to more complicated conditions, a physician may only say that his/her diagnosis is just a working opinion as to the patient’s condition until further tests are done.
For example, a doctor can easily diagnose a broken leg, but getting the proper diagnosis for abdominal pain might be more difficult. In that case, a doctor might say that his/her working diagnosis is gastritis, but further tests are required to determine exactly what the problem is. Only after all the tests are in will the doctor give a final diagnosis to the condition.
Because medical malpractice is based on negligence, a defendant physician’s actions are judged against the hypothetical “average” physician who practices the defendant physician’s specialty. The determination of whether a wrongful diagnosis was negligent also depends on the nature of the condition. Misdiagnosing a simple medical issue may very well be negligent, while misdiagnosing a very complex medical issue might not be considered negligence.
Let’s look at some examples. Again, a broken leg is relatively easy to diagnose. If a doctor somehow misdiagnosed a broken leg as a muscle pull, then that is a pretty open-and-shut case of medical negligence (a simple x-ray would tell the story).
However, other conditions and complaints are far harder to diagnose because the same types of complaints could be suggestive of many different types of conditions. Stomach or abdominal pain is a classic example. Someone who is complaining of abdominal pain could have any number of diseases, illnesses, and conditions ranging from gas to ulcers to diverticulitis to stage IV colon cancer. Medical textbooks might note that certain types of conditions are very frequently misdiagnosed. In that type of case, misdiagnosis might not amount to medical negligence.
In general, the evaluation of whether a doctor was negligent in diagnosing a patient is based on how the doctor went about investigating the patient’s condition and complaints. Every step of the doctor’s evaluation will be compared against the standard textbook procedure. The doctor’s office notes will be reviewed to determine whether the doctor took a complete medical history. Taking a complete medical history means to learn all about the patient’s current complaints and past relevant medical history -- i.e., getting all of the information that a reasonable physician should have gotten in such a case.
The next step is reviewing what actions the doctor took to evaluate the patient’s complaints -- i.e., what tests did the doctor order? If, for example, a doctor failed to order a specific test that is customarily ordered for a certain set of patient complaints, that certainly can be evidence of negligence.
Then, the last step is what the doctor actually did with all of the information that he/she obtained -- i.e., how did he/she put it all together? Let’s say that an older male patient came to the doctor with urinary complaints and that the doctor performed a prostate exam and then ordered a PSA test (a test for determining the possible presence of prostate cancer). So far, so good - but if the doctor diagnosed an enlarged prostate although the PSA test results showed that prostate cancer was reasonably likely, that could very well be evidence of negligence.
Even if you are able to show that your doctor is liable for misdiagnosis, you are not ready to go to court just yet. Your attorney and expert medical witnesses must also show that the lack of a proper diagnosis directly caused you additional harm.
For example, if your doctor doesn’t properly diagnose breast cancer, and it’s allowed to spread, the outcome can be disastrous. The wrong diagnosis in a case like this can cause serious injury. Other forms of cancer, though, are just as damaging whether they’re diagnosed early or not. The wrong diagnosis in that type of case may not have much effect on the outcome, so a malpractice case would have little or no damages to claim.
If a patient can prove that a physician gave the patient a wrong diagnosis, the patient is entitled to recover all damages related to that wrong diagnosis.
These damages would include the additional medical expenses that the patient incurred before getting the proper diagnosis and all pain and suffering that the patient endured as a result of being treated with the wrong diagnosis (up to your state's limit - if there is one), including damages for any permanent disabilities and impairments that the patient suffered as a result of the wrongful diagnosis.
Additionally, if the patient’s life expectancy was shortened due to the delay in arriving at the proper diagnosis, the patient would be entitled to damages for loss of enjoyment of life as well. (For more on damages, see Types of Damages and Compensation in a Medical Malpractice Case.)