Both a misdiagnosis and a failure to diagnose involve the incorrect interpretation of a patient’s presenting symptoms by a doctor. A misdiagnosis can occur when the doctor diagnoses the patient with the incorrect condition as the cause of their symptoms. This can lead to a patient undergoing unnecessary medical treatment or procedures, which can result in permanent impairments or exposure to the risks and side effects of that unnecessary treatment.
A failure to diagnose can also occur when the incorrect diagnosis is made or when no diagnosis is made at all. Both misdiagnoses and failures to diagnose can delay critical treatment targeting the actual condition or cause of the symptoms, which can result in lifelong impairments or even death due to missing the window during which treatment would have been effective.
What is a misdiagnosis or a failure to diagnose a lawsuit?
Lawsuits for misdiagnoses and failures to diagnose involve four elements that must be established on a balance of probabilities, which means on a “more likely than not” basis. An assessment of these elements will determine whether a lawsuit is viable; however, a trial is often required for a final determination of each element.
Duty of care
The first element is a duty of care. It is well established that doctors owe a duty of care to the patients under their care.
Breach of the standard
The second element is a breach of the standard of care. The patient must prove on a balance of probabilities that the medical care by the doctor breached or fell below the standard of care expected of a reasonable doctor in similar circumstances. The question is whether the patient received the minimum acceptable care in the circumstances. In practical terms, this determination typically requires the expert opinion of another doctor practicing in the same field who has reviewed the medical records and the evidence from examination for discovery.
In the case of a misdiagnosis or failure to diagnose, the expert must place themselves in the shoes of the doctor and, based on the evidence, opine on whether the course of care provided met the standard. A breach may be established if the expert concludes that the doctor missed or misinterpreted a finding or failed to conduct a particular investigation or test that was warranted in the circumstances. Conversely, a breach may not be established if the expert concludes that the doctor reviewed the medical evidence available at the time and made a reasonable assessment regarding the plan of care.
Causation
The third element is causation, which turns on whether it is more likely than not that the outcome would have been avoided had the medical care not fallen below the standard. A medical expert must provide an opinion that the breach of the standard was a “but for” cause of the outcome. Put differently, the expert must opine that but for the breach (i.e. if not for the breach), the patient would not have suffered their particular outcome.
Sometimes, causation can be straightforward, for instance, in the case of a misdiagnosis resulting in an unnecessary procedure to address the incorrect condition. The patient must prove that the unnecessary procedure (and any related outcome) would probably have been avoided had the doctor not misdiagnosed them. Other times causation is difficult, such as in the case of a failure to diagnose cancer in its early stages. The patient must prove that an earlier diagnosis would probably have led to a better outcome, which may be difficult to prove.
Damages
The fourth element is damages. Once breach and causation are established, the patient must prove the extent of their damages, which typically fall into three categories: general damages for pain and suffering, loss of income and competitive advantage, and cost of care. Establishing entitlement to damages often depends on expert opinions. Accountants quantify the present value of the projected loss of income over what would have been the patient’s remaining career, and of the medical care required over their life expectancy. Life care planners determine what treatment modalities will be required in order for the patient to achieve a quality of life approximating what they would have enjoyed if not for the misdiagnosis or failure to diagnose.
Can you sue for a misdiagnosis or a failure to diagnose?
To sue for a misdiagnosis or a failure to diagnose, a supportive expert opinion regarding breach of the standard and causation is crucial. Common sense is not sufficient. Rather, the issues of whether medical care in a given case fell below the standard and whether that substandard care caused the outcome to rely on the opinion of medical professionals. An expert must be able to say that the care a patient received breached or fell below the standard, and that their outcome was caused by that breach.
The lawyers at Bogoroch & Associates LLP are highly experienced in medical malpractice lawsuits, including cases involving a misdiagnosis or a failure to diagnose. If you have experienced a misdiagnosis or a failure to diagnose, contact Bogoroch & Associates LLP for a consultation.
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