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When is a Misdiagnosis Considered Medical Malpractice Negligence?
From:
Cochran, Kroll and Associates Cochran, Kroll and Associates
For Immediate Release:
Dateline: Detroit , MI
Thursday, October 31, 2019

 

Anger, miscommunication and grief often drive the desire to sue a medical professional or institution when someone you love is not getting better, or whose condition deteriorates, or the person dies. Misdiagnosis is often cited in medical malpractice claims, but it is important to understand when a misdiagnosis is, in fact, medical malpractice. An experienced Medical Malpractice Lawyer is your best option to evaluate if your claim qualifies.

Proving Medical Malpractice

A misdiagnosis is not always a medical malpractice issue and is not automatically proof of negligence. Many highly qualified physicians can and do make diagnostic errors even when exercising reasonable care.

Medical Malpractice falls under negligence in civil law, and you would have to prove several components for a malpractice case to be accepted, namely

  • Duty of care – i.e. a doctor-patient relationship.
  • Breach of duty – the medical professional was negligent and did not provide care in a reasonably competent and skilful manner.
  • Clear and direct causality – the negligence caused the actual harm. Quantify the harm – additional medical and other costs and other economic and non-economic losses.

There are several ways that physicians and other medical professionals can make diagnostic mistakes.

Types of Diagnostic Errors

  • Misdiagnosis – when the wrong diagnosis is assigned to the patient, for example, mistaking a heart attack in a woman for gastric discomfort. Diagnosing and treating a patient for cancer when it is not cancer is usually a serious misdiagnosis case.
  • Delayed diagnosis – when it takes a long time to get to the right diagnosis. Diseases present very differently in some patients, which can complicate the diagnostic process making this a very common problem.
  • Missed diagnosis – when they find nothing wrong but have missed a diagnosis. A doctor may think that a child is playing hooky when complaining of indeterminate discomforts with no obvious symptoms.
  • Failure to diagnose a related disease – many diseases go hand-in-hand (comorbidities) and diagnosing one should prompt you to check for high-risk comorbidities.
  • Failure to diagnose an unrelated disease – when one issue is diagnosed correctly but a second disease that is not related to the first is missed.
  • Failure to recognize complications – the patient is correctly diagnosed, but factors that can aggravate the condition are missed, or the patient already displays complications that are missed.

Negligence in Diagnosing

If any of the diagnosis errors outlined in the above scenarios occur, it is not automatically an issue of negligence. The doctor may have the right skills and qualifications and have exercised due diligence and extreme care and still have missed the diagnosis due to several factors. You would have to prove that he did not exercise reasonable care, by looking at his actions, investigations and decision-making logic for arriving at the diagnosis.

As many diseases are very similar in presentation, after taking a history and examining the patient, a physician needs to process the potential differential diagnoses to arrive at a primary diagnosis. They may order diagnostic tests to rule out differential diagnoses or to prove the suspected diagnosis.

Negligence would include failure to list obvious potential diagnoses in the differential diagnoses list, misinterpreting diagnostic test results or failure to order the right tests, as well as failure to recognise the urgency of complications or to refer to appropriate specialist care if complexity demands it.

If, however, the results of diagnostic tests are incorrect, the doctor is not negligent nor liable, and the liability will then rest with the source of the mistake.

In some cases, completely unforeseen complications arise, for example, an allergy to anesthesia, which can lead to a healthy patient’s death, but the doctor is not liable, as it could not have been reasonably foreseen under the circumstances.

Patients are warned that there is a risk of anesthesia and surgery complications during informed consent, which is why it is so important that the focus for negligence rests on the doctor’s performance as judged against a similarly qualified professional under similar circumstances.

You will need access to the patient’s medical records, hospital records and laboratory maintenance records as well as statements from relevant personnel, so it is best to make use of the services of a medical lawyer near you.

Diagnostic Test Errors

Sometimes diagnostic errors occur due to inaccurate results for diagnostic tests, which may happen for several reasons:

  • Mislabelling of a sample.
  • Not providing critical information that would guide the reading of results.
  • Pre-diagnostic test medication not given.
  • Faulty diagnostic equipment, such as laboratory analyzers.
  • Misreading of results.
  • Missing important clues in diagnostic tests such as an x-ray or a histology slide.

How did the Misdiagnosis Harm the Patient?

Having to prove clear causality for harm is always the most challenging part of malpractice cases. The patient or his representatives will have to prove that the doctor’s misdiagnosis or delayed diagnoses were the cause of the harm the patient suffered.

If you see a doctor for example for flu symptoms, and they treat the flu but do not check for cancer, it does not mean the doctor can be sued for missing the cancer diagnosis – other doctors would not have diagnosed it in similar circumstances.

However, if the patient described clear symptoms that could indicate the possibility of cancer, and has risk factors in their medical history, and it was not considered nor any diagnostic tests done to rule it out, you may have a case.

While the doctor’s misdiagnosis did not cause cancer, a delay in diagnosis when there were clear signs may be actionable if starting earlier treatment would have changed the outcome or treatment. Only medical expert witnesses can testify to this kind of scenario.

Diagnosing a patient with cancer, on the other hand, (maybe based on the wrong test results), when they do not have cancer, could be construed as harm caused by a misdiagnosis as the patient would have undergone unnecessary treatment and suffered anguish. Depending on the responsibility for the wrong results, the doctor may not be liable.

How to File a Medical Malpractice Case in Michigan

Eileen Kroll is a partner at a firm of top rated medical malpractice lawyers in Michigan who can assist you with a professional evaluation of the facts of your case. She is a professional nurse, as well as a trial lawyer, with special insight into the issues in medical malpractice and how the courts will evaluate medical issues.

If you are seeking a Detroit medical malpractice lawyer, you can contact her at Cochran, Kroll & Associates, P.C. at 1-866-MICH-LAW (1-866-642-529). Be sure to note the statute of limitations is three years so that you do not miss your opportunity to file.

Nikole has a special interest in medico-legal issues and holds post-basic degrees in medical law and business. She has developed quality improvement and safety plans for many practices and facilities to prevent medico-legal issues and teaches several courses on data protection and privacy, legal, medical examinations and documentation, and professional ethics. She has been writing professionally on legal, business, ethics, patient advocacy, research and medico-legal issues in articles, white papers, business plans, and training courses for over thirty-five years.

 
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Westwind Communications Legal Marketing
Plymouth, MI
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