Most doctors do not intend to give their patients erroneous information or wrong diagnoses. Doctors are humans, and humans are subject to mistakes. However, mistakes are costly in time, money and quality of life. The tort system is set up not so much to punish human error but to provide restitution to the patient. The social policy is that a patient is totally reliant on the expertise of the medical personnel and is usually in a less beneficial financial situation, and therefore should not have to shoulder the financial fallout of a medical error. Conversely, the courts do not want to provide disincentive to doctors not to practice. The system seeks a balance between both social policies.
Types of Misdiagnosis
Medical misdiagnosis may occur in the following circumstances:
- when a physician fails to get the necessary or correct tests
- when a physician misreads lab or diagnostic reports
- when a physician neglects to get the patient's full medical history or does not listen to the patient
- when a physician makes short cuts in treatment
Any of these violations can lead to catastrophic consequences, especially if types of cancers or other virilent diseases are misdiagnosed. Medical misdiagnosis can compromise a patient's health by delaying diagnosis of the actual disease, by delaying urgent follow-ups and/or by misdirecting the physician to prescribe the wrong treatment or medicines.
Assumption of Risk
In a medical malpractice case, the defendant physician may assert that the patient assumed the risk of any harm caused by treatment. Before any treatment, patients sign standard waivers; this is to protect the hospital or doctor from possible legal action. However, most lay people may not not be aware of the full consequences of the waiver, and courts realize that. There are specific circumstances in which the assumption of risk defense will not apply:
- When the patient was not aware of specific risks
- Where the physician's treatment fell below the recognized standard of care
- Where the physician's negligence is gross, reckless, wanton, or malevolent
- Patient unaware of potential fallout from doctrine of assumption of risk
Therefore, a waiver does not necessarily bar a patient from pursuing a case against a negligent doctor, especially where a medical mistake could have been avoided by due care.
Most doctors operate in good faith and do their professional best to help their patients. However, a misdiagnosis is a per se error that good faith arguments cannot supersede. The misdiagnosis in itself points to either carelessness, inexperience, or wanton disregard. Somewhere during the patient's treatment, the doctor simply failed the due care standard. There were precautions the doctor could have taken to make sure certain errors were not committed.
In the end, the patient pays even if he or she receive monetary restitution. Death, compromised health, and diminished quality of life are some of the exacting, and often preventable, costs of medical misdiagnosis.
Find an Attorney
If you believe you were harmed due to a medical malpractice, do not wait to consult an attorney. You should not have to shoulder the financial burden of a medical error and are due restitution that will cover your economic and non-economic costs. Find an attorney who is experienced in malpractice law to ensure that your legal rights are protected.
