When you seek the advice of a health care professional and undergo medical testing, you likely assume that the diagnosis you ultimately receive will be correct. Unfortunately, that’s not always the case, but when do you have a case for medical malpractice from a misdiagnosis, and when is it considered part of the practice of medicine?
In a general sense, while there
are a lot of variables, if a doctor doesn’t make both a timely and accurate
diagnosis of a harmful medical condition, you might be able to file a lawsuit
for medical malpractice. It’s certainly possible in medical situations that a
doctor could have made a diagnosis to the best of their ability, and even if it
were wrong, it would be legal medical negligence.
The following are some things to
know.
Common Misdiagnosis Situations
There are certain scenarios that can lead to a delayed
diagnosis or the wrong diagnosis. Examples include:
Failure to screen for a disease or medical condition
Not following up on the possible causes of symptoms
Misdiagnosis is one of the top reasons for patient deaths,
and there are often thousands of patients in the U.S. alone each year that are
misdiagnosed, or deal with delayed diagnosis or missed diagnosis.
Many patients who aren’t properly diagnosed also aren’t ever
referred to anyone for a second opinion.
What Do You Have to Show?
With medicine, there is always a degree of uncertainty,
which is why it’s called the “practice” of medicine. Legally doctors aren’t
held responsible for all errors in diagnostics. For a patient who brings forth
a malpractice suit, they would need to show three things.
First, you need to prove there was a doctor-patient relationship.
The second thing you need to show is that another doctor in
a similar situation and a similar medical role or practice wouldn’t have made
the same mistake your doctor made. That shows the doctor was potentially
negligent if another doctor wouldn’t have missed the diagnosis in the same way.
The third thing you’ll need to prove is that the negligence of the doctor caused injury or harm to the patient.
Doctors are required to provide a duty of care to all
patients, and if a doctor doesn’t meet the minimum standards, then they’ve
breached that.
Other conditions misdiagnosed are stroke and chronic kidney
disease.
When a person is misdiagnosed, or their diagnosis is
delayed, it can increase the potential for complications, or expose them to
risky treatments that aren’t necessary. It can also increase the risk of death
or contribute to someone undergoing an unneeded surgery.
Was the Patient Harmed by the Misdiagnosis?
One of the main considerations to keep in mind with a
medical malpractice lawsuit, whether it’s from a misdiagnosis or something
similar, is that you’ll need to show some harm. If you can’t show this, it can
weaken the potential for a successful lawsuit.
You need to be able to show that if a diagnosis had been
made in a timely way, then the condition wouldn’t have progressed in the way
that it did.
There are some rare cases in which a doctor may wrongly
diagnose a person with something worse than what they have or something when
they have nothing at all and you may be able to get damages for that as well if
you can show it led to stress, anxiety, medical issues or unnecessary
treatment.
Who Can Be Sued?
Typically if you were going to sue for a misdiagnosis, you
would sue your primary doctor. In some cases, although rare, other
professionals in the health care industry might be liable if their negligence
played a role in the patient’s harm.
This could include any specialists, lab techs, and nurses
who saw the patient.
A hospital or health care facility can’t be sued because
doctors are independent contractors. Doctors aren’t employees of the hospital,
so the facility can’t be held responsible if they are negligent.
If you or a loved one suffered as the result of a misdiagnosis or a delayed diagnosis, it might be worth having a conversation with a legal professional. It can be tough to prove in some instances, but if you can prove negligence led to harm you may be able to recover damages.
Medical malpractice is a serious topic, but it’s also something that gets used inappropriately by many people who are simply looking for a handout. Studies, including one from Purdue University published in 2017, have found that over a quarter-million people die every year from medical mistakes.
That’s a good reason for doctors and victims
alike to take this topic seriously, as there is the potential for some
significant long term damage for either party involved. Victims of these
situations can have life-threatening consequences while doctors can lose their
careers over just one incident.
When trying to determine whether or not a case of
true medical malpractice has occurred this is what is considered.
Promptness
of Medical Malpractice Reporting
In order for medical malpractice to be determined
and taken care of, it must be reported shortly after the incident or illness
happens. This is to protect the doctor and medical staff involved from getting
put at fault when it wasn’t caused by them.
Medical
Negligence
It’s important to note that just because a
patient’s condition gets worse, it doesn’t mean it’s a criterion for medical
malpractice. Everyone is different, and if it happens that a certain treatment
didn’t go as hoped, the doctor is not normally found at fault. The
responsibility of the doctor is to act professionally and treat you to the best
of his or her ability. In addition, there are some conditions that will only
get worse over time and do not have any kind of immediate cure or treatment
available.
A Doctor’s
Recklessness
Much like what was mentioned above, with
conditions that worsen over time, the same parameters exist for patients who
are not treatable. If a person is injured in an accident and contracts an
illness, the blame can’t be placed on the physician simply based on the outcome
of the patient. As long as the doctor took the best course of action according
to his or her knowledge on how to move forward with treatment, this is not
considered to be recklessness or medical malpractice. If you believe that a
medical professional intentionally gave you the wrong treatment to harm you,
it’s important to take notes and save any documents related to the visit to the
doctor as that is medical malpractice.
Treatability
of a Victim’s Illness
Of course, in some cases, patients have a
condition or illness that just isn’t treatable. Or, they can be treated with an
expectation that things will not turn out how they want them to. Sometimes,
people like to blame doctors who aren’t able to make them feel better, but
recovery from a serious injury or illness completely depends on who’s involved
and their body responds to the treatment. Medicine is not guaranteed to work
for everyone, which is why it is certainly not considered malpractice to fail a
plan for treatment. Malpractice laws are not in place to lend a hand to the
unfortunate, but to make sure that people are getting fair treatment and the
best approach for tackling a health issue.
Testimony
From an Expert
A critical part of determining malpractice is to get advice from someone who is very familiar and comfortable with the industry. Someone like a medical malpractice lawyer can be a big help in these situations as well as to help you come out on top in the courtroom. In almost all cases, testimony from an expert is required by state law during a trial. Medical malpractice is not something that is taken lightly, so you can rest assured that you’re in good hands after talking to an attorney or expert in this department.
Medical
Officials Panel
When a patient makes a medical malpractice claim,
it is taken seriously right from the very start. After the initial paperwork is
done, a panel in the medical field has a meeting to determine if the person has
a potential case. It’s important to know that this panel cannot replace a real
trial in a courtroom, nor award damages, but this is one step that someone must
do in order to officially file a malpractice situation. After all the evidence
that is presented to the group is reviewed, it is then decided if this is a
case of medical malpractice or not. Obviously, the ones that are real cases
move forward to the legal system.
The number of medical negligence claims in the UK is rising, and so is the cost to the NHS. Medical negligence claims arise from all fields of medicine and surgery, and come from failures to diagnose, failures to treat, or errors made during surgery. It is patients, not doctors, who bear the brunt of a medically negligent act, but fortunately the increasing use of medical technologies to assist doctors and surgeons is helping to reduce the number of errors that occur.
The NHS sees all too many of the effects of medical malpractice, with lawsuits on the rise. In the 2013/2014 financial year alone, the NHS received an unparalleled number of medical negligence claims, with over 1000 claims per month. The NHS has now increased the fund it has to deal with medical negligence claims from £8.7 billion in 2010, to £15.7 billion in 2014.
Many people probably see medical negligence claims arising from botched surgeries, and it is true that patient injury from orthopaedic and general surgery are some of the largest areas of medical negligence claims in the UK, along with negligence in obstetrics. However, the evidence is conflicting. A 2011 study found that neurosurgeons and cardiovascular surgeons were the groups most likely to be sued, while another found that the specialties most represented in medical negligence claims were internal medicine (the prevention, diagnosis, and treatment of adult diseases), and family medicine (what your family doctor or GP does). It does seem like the reasons for medical malpractice suits being brought are spread across the board, and may not always be surgical errors, but instead may be failures to diagnose a condition, or failures to treat that condition effectively.
Technological improvements are constantly providing new ways to improve and maintain the quality of patient care. This is extremely important, as poor quality care can lead to negative outcomes and ongoing injuries that cause pain and suffering. This isn’t just a few people, either: according to Patient Claim Line, a team of medical negligence experts, 61% of people who suffered medical negligence suffer from constant pain. Apple’s increasing number of health-related apps and technologies such as the Apple Watch are just one piece of the puzzle in trying to solve these problems, but they are an indicator of how in the modern day we are moving towards technological solutions to solving our these issues.
There are a number of new technologies in several different fields that can help to alleviate the influx of medical negligence and the accompanying claims to the NHS. First, clinical decision support systems are one type of technology that can assist doctors and other medical practitioners to make the best medical decisions for their patients. Their effectiveness is controversial, however, with several studies showing that the software did not help doctors as much as it was intended to. Other studies have shown huge benefits, so its usefulness is still up for debate.
The second type of up and coming similar technology has been likened to the black box on airplanes. Like a black box it will collect information, and will provide surgeons with a live analysis and advice on the progress of an operation. One of the researchers on this project, Teodor Grantcharov, notes that around 20 errors occur per surgery. Part of the reason, he thinks, is that once surgeons are finished with their training, there isn’t as much professional oversight over the surgeon’s work. The technology works by using a setup of cameras and microphones, and the patient data such as heart rate and blood pressure is fed from the relevant machines into the black box as well. This technology can hopefully bring down the patient injury rates from the orthopaedic and general surgery categories mentioned above.
All in all, there are numerous potential technological helpers that doctors and surgeons will soon have access to, and we can only hope that they decide to use them. Patients suffer from medication mistakes, misdiagnosis, or unnecessary treatments that all reduce their quality of life and introduce the potential for ongoing pain. As medical technology becomes more widely available, doctors should adopt these measures to prevent increased harm and suffering to the general public who desperately rely on their high-quality and mistake-free services.
You may not like the treatment you have received from your doctor or your hospital. But, that does not necessarily mean you have been the victim of medical negligence. Your care team may have done everything that they could and still not managed a favourable outcome. So, just how do you decide whether you or your loved one has suffered from medical or clinical negligence? Well, there are four main stages or elements used for determining whether medical negligence has taken place…
A duty of care
First, you must show that the individual or organisation you believe caused you to suffer unnecessarily had a duty of care to you. While in other cases of negligence, this could be hard to prove, in medical negligence, when you are talking about doctors, nurses, dentists, opticians or other healthcare professionals, it’s usually a simple step. As soon as a clinician or medical professional has accepted a responsibility to provide care or treatment to a patient, then they owe a legally enforceable duty of care to them.
Elements for determining medical negligence
Breach of duty
Once you’ve proved that duty of care existed, then the next step is to show there has been a breach of that duty. It comes down to whether the standard of medical treatment you received was not up to scratch. A clinician may have failed to do something. Perhaps, for example, they have failed to diagnose a condition which they should reasonably have been expected to spot. Or they could have done something they shouldn’t have. In extreme cases, surgeons have operated on the wrong side of the body or anaesthetists have made mistakes leading to patients waking up mid-operation. Of course, not everything goes perfectly and mistakes do happen. That doesn’t mean medical negligence has occurred in all cases.
Causation
This stage involves showing that the injury or condition you’re suffering from has been caused as a direct result of the negligent treatment you have received. Any pain or suffering that could have been expected as a result of treatment won’t be taken into account. In medical negligence, you are essentially claiming for any pain or suffering which is additional or which should not have happened at all. This part of any action is often referred to as the “but for” principle. For example, but for the surgical swab left inside her body, she wouldn’t have needed extra surgery or but for the lack of a diagnosis, her condition could have been successfully treated.
Damages
Once the initial stages have been proved, then it is up to you to show that you have suffered a loss or damage as a result of the negligence you have suffered. This isn’t limited to financial damage. You may have suffered from emotional damage as a result of losing a loved one due to medical negligence or of suffering a serious injury yourself. You may also have suffered a financial loss. Perhaps, for example, you’ve been unable to work for a period of time because of the negligent treatment which took place. Or maybe you’ve had to give up work to care for a family member who has suffered as a result of medical negligence.
When we’re ill or injured, it’s natural to put our faith in the hands of medical professionals. Usually, that faith is more than justified. But, when it’s not, it’s important to think about whether the care you’ve received could have been negligent under these four stages, to make sure you get any compensation you’re entitled to.
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