What if your doctor makes the wrong diagnosis? Can you sue for medical malpractice in that situation? If so, what will you and your attorney need to prove? Read on for the answers.
Medical Malpractice is Based on Negligence
Medical malpractice means medical negligence. Just like in any other personal injury case, it is always the plaintiff’s burden in a medical malpractice case to prove that the doctor was negligent. In medical malpractice cases, courts often define negligence as a physician’s failure to exercise the degree of care and skill of the average physician who practices the defendant’s specialty, taking into account the advances in the profession and resources available to the defendant. (More: When It's Malpractice and When It Isn't.)
What is a Medical Diagnosis?
A medical diagnosis is simply an identification of a medical problem. With respect to more complicated conditions, a physician may only say that his/her diagnosis is just a working opinion as to the patient’s condition until further tests are done.
For example, a doctor can easily diagnose a broken leg, but getting the proper diagnosis for abdominal pain might be more difficult. In that case, a doctor might say that his/her working diagnosis is gastritis, but further tests are required to determine exactly what the problem is. Only after all the tests are in will the doctor give a final diagnosis to the condition.
(To learn more about the elements in a medical malpractice case involving misdiagnosis, see the article Filing a Lawsuit for Wrong Diagnosis.)
Is a Wrong Diagnosis Always Negligence?
Because medical malpractice is based on negligence, a defendant physician’s actions are judged against the hypothetical “average” physician who practices the defendant physician’s specialty. The determination of whether a wrongful diagnosis was negligent also depends on the nature of the condition. Misdiagnosing a simple medical issue may very well be negligent, while misdiagnosing a very complex medical issue might not be considered negligence.
Let’s look at some examples. Again, a broken leg is relatively easy to diagnose. If a doctor somehow misdiagnosed a broken leg as a muscle pull, that is a pretty open-and-shut case of medical malpractice (a simple x-ray would tell the story).
However, other conditions and complaints are far harder to diagnose because the same types of complaints could be suggestive of many different types of conditions. Stomach or abdominal pain is a classic example. Someone who is complaining of abdominal pain could have any number of diseases, illnesses, and conditions ranging from gas to ulcers to diverticulitis to stage IV colon cancer. Medical textbooks might note that certain types of conditions are very frequently misdiagnosed. In that type of case, misdiagnosis might not amount to medical negligence.
In general, the evaluation of whether a doctor was negligent in diagnosing a patient is based on how the doctor went about investigating the patient’s condition and complaints. Every step of the doctor’s evaluation will be compared against the standard textbook procedure. The doctor’s office notes will be reviewed to determine whether the doctor took a complete medical history. Taking a complete medical history means to learn all about the patient’s current complaints and past relevant medical history -- i.e., getting all of the information that a reasonable physician should have gotten in such a case.
The next step is reviewing what actions the doctor took to evaluate the patient’s complaints -- i.e., what tests did the doctor order? If, for example, a doctor failed to order a specific test that is customarily ordered for a certain set of patient complaints, that certainly can be evidence of negligence.
Then, the last step is what the doctor actually did with all of the information that he/she obtained -- i.e., how did he/she put it all together? Let’s say that an older male patient came to the doctor with urinary complaints and that the doctor performed a prostate exam and then ordered a PSA test (a test for determining the possible presence of prostate cancer). So far, so good. But if the doctor diagnosed an enlarged prostate although the PSA test results showed that prostate cancer was reasonably likely, that could very well be evidence of negligence.
What Damages is A Patient Entitled to in A Wrongful Diagnosis Case?
If a patient can prove that a physician gave the patient a wrong diagnosis, the patient is entitled to recover all damages related to that wrong diagnosis.
These damages would include the additional medical expenses that the patient incurred before getting the proper diagnosis and all pain and suffering that the patient endured as a result of being treated with the wrong diagnosis, including damages for any permanent disabilities and impairments that the patient suffered as a result of the wrongful diagnosis.
Additionally, if the patient’s life expectancy was shortened due to the delay in arriving at the proper diagnosis, the patient would be entitled to damages for loss of enjoyment of life as well.