Can You Sue a Doctor for the Wrong Diagnosis?

In legal terms, misdiagnosis can be a type of medical malpractice. Medical malpractice law falls under the umbrella of personal injury law. It covers many medical mistakes, such as leaving a sponge inside you during surgery (surgical error). This legal area gives you a basis to sue if a doctor misdiagnoses you. 

This FindLaw article explores medical misdiagnoses and how to file a medical malpractice lawsuit if you received the wrong diagnosis. Be sure to also speak with a medical malpractice attorney about your potential claim. They can help you determine whether you can sue your doctor.

Understanding Medical Misdiagnosis Cases

Misdiagnosis cases are not limited to medical mistakes. Physicians who fail to give you a diagnosis or run certain tests, like an X-ray, may give you a wrong or incorrect diagnosis.

A wrong diagnosis might lead to one of the following outcomes:

• Make your medical condition worse
• Delay a correct diagnosis
• Result in more harm to you or death, which is referred to as wrongful death

These all violate the medical standard of care that you should expect when working with a medical professional. It can be considered medical negligence if the doctor fails to exercise reasonable care.

In all cases, your misdiagnosis must cause an injury or death for you to be able to file a medical malpractice lawsuit.

What Are Some Common Misdiagnoses?

One in 20 patients is misdiagnosed during medical treatment. Doctors usually have a 95% success rate in providing a correct diagnosis. However, a misdiagnosis could mean an illness was left untreated for too long.

Here are some commonly misdiagnosed illnesses:

• Asthma misdiagnosed as recurring bronchitis
• Heart attack misdiagnosed as indigestion or a panic attack
• Lyme disease misdiagnosed as the flu, depression, or mononucleosis
• Parkinson’s misdiagnosed as Alzheimer’s, a stroke, or stress
• Lupus misdiagnosed as chronic fatigue syndrome, fibromyalgia, or rheumatoid arthritis
• Appendicitis misdiagnosed as stomach pain
• Misdiagnosis of symptoms related to pregnancy and birth injuries, such as preeclampsia

What Should I Do if I Am Worse After Seeing a Doctor?

If there is an emergency, go to an emergency room or urgent care right away. Getting better is your first priority. If your condition isn’t an emergency, consider getting a second opinion from a different doctor.

But there are a few pitfalls to avoid when you think a misdiagnosis has occurred. Your attorney will advise you on how to proceed with the case. They should explain to you that you have a duty to:

• Follow your doctor’s orders unless they are making you worse or if you see no improvement
• Seek additional care or a second opinion

This is called mitigating damages. In medical malpractice cases, the patient’s behavior is evaluated as much as the doctor’s. They will want to make sure you’re not committing fraud by making your illness or injury worse on purpose. If you need different care, then you need to get it right away.

What Should I Do if I Think I Have Been Misdiagnosed?

Medical malpractice cases that involve a misdiagnosis or delayed diagnosis are fairly common.

If you are not getting better after treatment, you should return to your physician or see a new doctor for a second opinion. Based on what you learn, you may decide to file a medical malpractice suit.

Filing a Failure To Diagnose Lawsuit

The main purpose of a misdiagnosis lawsuit is to support your recovery by holding the doctor or health care facility responsible for your losses. A successful claim must prove that the failure to diagnose your medical issue falls under the legal definition of malpractice. The court can then award compensation.

Sometimes, patients settle medical malpractice cases out of court and don’t need litigation. Yet, be careful if an insurance company offers you money to settle your claim. Once you accept a settlement, you waive your right to sue. This waiver is true even if the settlement is too low to cover your costs. Review any potential settlement offer with a lawyer who can help you negotiate for a fair amount.

How Long Do I Have To Sue for Misdiagnosis?

For medical malpractice claims, the time frame for filing a claim is generally two to six years. However, it varies based on the state where you live.

Victims of medical malpractice should be aware of the statute of limitations. A statute of limitations is the amount of time you have to bring a claim. Each state may set a different time limit in its civil laws.

Consulting With a Malpractice Attorney

Your first step in filing a medical malpractice suit is scheduling a consultation with a medical malpractice lawyer. Many offer a free case evaluation, including an examination of your medical records and ensuring you are within the time limit of the statute of limitations.

Proving Medical Misdiagnosis

In order to prove medical malpractice and win your medical malpractice case, you must demonstrate that the doctor was negligent in your medical case. You must show the existence of the four elements of negligence to bring your suit.

The elements are as follows:

• Duty: Did the doctor have a duty to care for you? Typically, when there is a doctor-patient relationship, the doctor has a duty to act as a reasonably competent doctor.

• Breach: Did the doctor breach the duty? Just because a doctor misdiagnosed an illness doesn’t necessarily mean they were acting negligently. To show a breach of duty, you’d have to be able to prove that a reasonably competent doctor would have been able to diagnose the illness properly.

• Causation: Did the doctor’s misdiagnosis actually cause you harm? Your doctor may have misdiagnosed a loved one with cancer instead of the flu, but the next day, someone ran them over and killed them. The doctor’s misdiagnosis was not the cause of death.

• Damages: Did the misdiagnoses result in any measurable losses, which are referred to as damages? The doctor may have misdiagnosed you with migraines instead of the flu. However, the doctor prescribed you Tylenol, which helped cure your flu as well. This means you didn’t suffer any damages because of the misdiagnosis.

Gathering Medical Records

Your attorney may have a medical expert review your medical records and medical history. They may help identify diagnostic errors or other medical errors to support your case. Your medical records can help prove your claim and provide the existence of a doctor-patient relationship and subsequent medical care.

Your attorney may call the medical expert as an expert witness at your trial to support your claims. You or your attorney can request your medical records from your healthcare providers.

Get Legal Help for an Incorrect or Delayed Diagnosis

If you or a loved one has suffered an injury as a result of medical malpractice, you should speak to a medical malpractice attorney. They are experts in this niche area of personal injury law and can give you sound legal advice. They can also help you start a legal action to recover damages. Speak to a medical malpractice attorney near you today.