Yes, you have the right to sue a doctor if they misdiagnose an illness or injury. To pursue legal action, the misdiagnosis must have led to additional harm or the death of a loved one.
This situation is classified as medical malpractice, which is a subset of personal injury law. Unlike criminal cases, personal injury cases are civil matters. However, if the misdiagnosis was intentional or resulted in death, there may be elements of criminal law involved.
What is medical misdiagnosis?
A medical misdiagnosis of your injury or sickness means the doctor made a medical mistake (surgical error, etc.) or misread your test results or medical records.
As a result, a wrong diagnosis might:
- Make your medical condition worse
- Delay a correct diagnosis
- Result in more harm to you or death, which is referred to as wrongful death
Misdiagnosis cases can also exist if your doctor fails to give you a diagnosis or fails to run certain tests like an X-ray. In other situations, the hospital or pharmacy could be at fault.
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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.
What are common misdiagnoses?
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
Most doctors are trained to think and act by establishing a “differential diagnosis.” This involves listing their impressions or “differing” diagnoses of possible causes of a patient’s symptoms from most likely to least likely.
The most common way doctors are negligent by failing to treat a medical condition is when they dismiss symptoms as temporary, minor, or otherwise not worthy of treatment. This situation may result in a worsening of the underlying condition or injury, causing further harm or injury.
During medical treatment, one in 20 patients is misdiagnosed. Doctors usually have a 95% success rate in providing a correct diagnosis. However, a misdiagnosis could mean an illness may be left untreated for too long. It could also mean that a patient may suffer through unnecessary treatments.
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.
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.
In some cases, you can take your original injuries or illness to trial against a doctor. However, any new injuries that happened from waiting around may not be recoverable. Those new injuries would be your own responsibility.
Having an attorney by your side from the beginning is the best way to avoid more problems. It’s the best way to build a strong case.
Can I prevent being misdiagnosed?
Doctors are medical experts. We do not expect them to misdiagnose a disease or injury. However, mistakes happen. You can try to reduce the chances of a misdiagnosis by:
- Asking questions if you’re not getting better
- Asking for a second opinion or asking your first doctor to review your results again
- Writing down directions, terms, notes, or anything you do not understand
- Asking for other possible diagnoses so you can switch treatment if needed
- Finding a highly reviewed doctor or asking for recommendations for a new doctor
- Making an appointment with a specialist
What do I do if I think I have been misdiagnosed?
Medical malpractice cases that involve a misdiagnosis or delayed diagnosis are more common than you might think.
Only you know how you are feeling. If you are not getting better or something feels off, then you should trust your gut. You can return to the same doctor and explain the additional issues or symptoms. You could also see a new doctor for a second opinion.
How long do I have to sue for misdiagnosis?
For medical malpractice claims, the time frame is generally two to six years to file a claim. However, it varies based on the state where you live. Victims of medical malpractice should be aware of their state’s statute of limitations. A statute of limitations is the amount of time you have to bring a claim.
Prepare for the process ahead of you, and to know when to get professional help for your situation.
How do I start the process of suing my doctor?
Your first step should be a consultation with a medical malpractice attorney, which most will do for free, to ask them if you have a case and if you are within the statutory time limit. Find a trusted law firm with an experienced medical malpractice lawyer. Leave your name and phone number and give them a few details about your case. They should get back to you and offer some legal advice on pursuing the case or not pursuing it.
How do you prove a misdiagnosis?
To prove a doctor was negligent, you will need to bring a legal action for negligence. To sue for negligence, you need to show four elements: duty, breach, causation, and damages:
- Duty: Did the doctor have a duty to care for you? Normally, 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.
Misdiagnosis may be difficult to prove. In complex medical cases, it can be hard to know whether an illness is only worse because of the failure or delay in diagnosis.
For example, a patient may claim their doctor failed to diagnose a certain cancer soon enough, which gave the cancer time to spread to other organs or tissues. But experts may testify that “micrometastasis” (spreading of the disease at the cellular level) may occur as early as ten years before diagnosis of a first tumor. Cancerous cells may have already traveled in the bloodstream and lodged elsewhere, eventually growing into new tumors.
Get Evidence of Misdiagnosis
Next, you may need to gather paperwork to show diagnostic errors or any medical errors that happened while you were at the hospital or attending doctor’s appointments. These will:
- Support your claim in the future
- Prove you had a doctor-patient relationship
- Show evidence of your doctor’s negligence
- Give your attorney a framework to build the case
Healthcare providers should give you your records when you ask. If it seems like they are resisting, you should tell your attorney.
You may eventually get second opinions on the medical care you received to help prove your doctor was wrong. Other doctors may also be used as expert witnesses if the case goes to court.
Should I start a medical malpractice case? Talk to a Lawyer
There can be many reasons why you may have been misdiagnosed. Your doctor may have made a mistake or not listened to you. Maybe you left out a key part of your medical history or symptoms. No matter the reason why it happened, getting better is what matters most. Not getting the answers you need can be life-threatening.
Get the medical attention you need and find an experienced attorney to determine whether you have a medical malpractice case. It is your right to have competent medical care, so suing your doctor, even if you really like them, might be a necessary course of action.
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