Bringing a Medical Malpractice Lawsuit Based on Misdiagnosis

By Linda Nwoke

Medical malpractice is the third leading cause of death in the United States. According to a study carried out by Johns Hopkins University, over 250,000 people die yearly from medical errors and negligence. Additionally, the American Medical Association, every one in three clinicians gets sued at least once throughout their career. Over 90% of physicians face at least one lawsuit before 65 years, especially those specializing in surgery. Healthcare lawsuits can emanate from a clinician’s failure to treat, cause childbirth injuries, errors in prescription drugs, delayed diagnosis or misdiagnosis, or surgical errors, to mention a few.

The Impact of Misdiagnosis
Many medical malpractice lawsuits often come from misdiagnosing, delayed diagnosis, or non-treatment of a medical condition, illness leading to dire results or injury. Consequently, a patient’s condition can significantly depreciate and even lead to death. An example of such a case happened to Frank. He first noticed a swelling at his elbow twenty months ago and reported the concern to his primary physician. However, the swelling was not accurately diagnosed until it became too late and had become malignant, leading to his death in less than a year. Experts report that over 13 million people are misdiagnosed yearly with cancer. Researchers from The John Hopkins Hospital report misdiagnosis of at least one out of 70 cancer-tested samples tested. According to the Institute of Medicine, over 96,000 patients die yearly due to medical mistakes. These costly errors cost peace of mind and finances. Take Brooklyn resident *Ms Brown, ( full name not given for privacy) who reportedly learned about her throat cancer diagnosis last minute. Brown, who was 38 at the time, says that she was just a few hours away from having a scheduled throat operation when a second biopsy revealed the diagnostic error. Despite having undergone sleepless nights and untold psychological distress, she was too relieved with the news. Interestingly, a mistake in diagnosis is considered insufficient for a medical malpractice lawsuit.

Medical Malpractice Lawsuits in New York
Between 2009 and 2018, New York recorded over 16,000 medical malpractice reports, one of the most extensive amounts in the country, according to the National Practitioner Data Bank (NPDB), followed by California and Florida. According to the same source, the empire state also had the highest (over $7 billion) total medical malpractice payments compared to other states.

So, what are the factors to be considered in proving negligence in a medical malpractice case?
There are three main factors to be considered in judging if a medical doctor can be held liable for misdiagnosis. As earlier mentioned, the law does not hold doctors legally responsible for all diagnostic errors. Instead, patients must prove three things in a medical malpractice lawsuit based on a wrong diagnosis:

•A breach in existing care-relationship: fundamentally, every medical doctor has a duty of care towards their patient, exhibited in the doctor-patient relationship. Thus, a complainant or the plaintiff will have to prove a breach of duty (that the doctor (defendant) failed to abide by the expected duty of care. The doctor was negligent, thereby not providing treatment reasonably skillful and competent.

•Secondly, they need to prove that the breach in duty caused or led to medical harm or damages to the patient.

•And finally, the damages have/led to financial, psychological, and physical consequences, meaning that the doctor’s negligence resulted caused actual injury to the patient.

Addressing the Doctor’s Negligence
The plaintiff or patient must establish that the doctor’s competence is questionable. At one time or another, any skillful doctor would commit diagnostic errors irrespective of their years of practice. This can result from various factors that make a misdiagnosis or delayed inadequate diagnosis evidence of negligence, which shifts the focus to the issue of ‘competence.’ For a negligence case, there is a need to evaluate the process followed by the doctor to reach a diagnosis. The systemic identification method is called the “differential diagnosis” method. Doctors use it to identify a condition and decide on the treatment option for the patient. The method involves testing out the various probable diagnosis and then eliminating them based on test results. The doctor might start with an initial diagnosis. Then, he can proceed by requesting another round of tests to reach a final working diagnosis. Thus, a diagnosis is achieved based on a combination of detailed questions about symptoms, medical history, and tests results or, in some cases, referrals to specialists.

However, in a medical malpractice case based on diagnostic error, the patient will have to prove the following:

•Demonstrate that the doctor did not include the correct diagnosis on the differential diagnosis list.

•Secondly, if another competent and equally skillful doctor had handled the case, the latter would have identified the correct diagnosis. In this scenario, the doctor made the correct diagnosis using the differential diagnosis list from the onset.

•However, the doctor failed to gather the necessary evidence by performing appropriate tests or seeking a second opinion from experts to investigate the new diagnosis.

Sometimes a doctor’s failure to accurately diagnose a condition can rely on inaccurate results from laboratory tests.

An inaccurate diagnosis can be a result of faulty equipment or human error. For instance, a technician might use the wrong procedure, carry out the test inappropriately, or record incorrect samples.

Samples can also become mixed up, contaminated, or a pathology slide can be wrongfully read. All of these scenarios can compromise the result. Although, the doctor in such instances might not be held liable for such an error.However, the patient must prove that the error was due to negligence.

Need to Proof that The Misdiagnosis Caused Harm to the Patient
Another element considered is a patient’s proof that the doctor’s misdiagnosis or delayed diagnosis from negligence resulted in the harm, injury, or the progression of the condition beyond where it would have been. In a situation where the diagnosis was accurate and done in a timely. They also need to prove that the condition’s progression hurt treatment or general outcome. For example, because of a delayed ulcer diagnosis, the patient had to undergo surgery to cut off a perforation that was avoidable. Occasionally, when a doctor mistakenly diagnoses a patient with an illness or condition that the patient does not have, the patient may be able to prove harm in the form of psychological trauma, pain, suffering, and wasted resources to treat a non-existing illness.

Next Steps in Filing a Medical Malpractice Lawsuit
The following summarizes some of the steps to implement in a medical malpractice case.

1.Raise your concern with the medical professional involved.
To start a case, you must contact the doctor before filing a claim. Endeavor to understand what may have gone wrong and aim for a settlement which can be in the form of a correction or providing a solution.

2. Contact the appropriate medical licensing board.
This takes the issue a step further if the initial approach fails. Find out the governing board for the doctor’s or medical professional’s practice. They can provide vital guidance on what to do.

3. Contact an attorney and discuss the merit of your claim.
Experience matters. Call the Law Offices of Figeroux & Associates at 855-768-8845 or visit to schedule a consultation.

4. Find out what the law says.
Confirm the statute of limitation on your civil claim in your home state, research the state law on medical malpractice claims.

5. File a certificate of merit.
This requires the opinion of another expert to validate your concerns.

6. Consider settling out of court.
This saves time and money as most civil claims, including a medical malpractice lawsuit, requires many resources.

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