Whether the doctor lived up to the standard of care will likely require an expert opinion. One of the issues the expert will examine is the defendant doctor's differential diagnosis method. When trying to diagnose a patient, a doctor makes a list of diagnoses in order of probability and tests them by asking the patient questions, making further observations of the patient, or ordering tests. The goal is to rule out diagnoses until there is only one diagnosis remaining. However, in many instances, a doctor learns more information that requires him or her to supplement the list with other potential diagnoses.
Suing a hospital for misdiagnosis is dependent on whether the doctor is an employee of the hospital. A hospital is liable for all damage committed by their employees once the employee is performing his/her duties. The principle of employer’s liability states that any act or omission by the employee in the course of their employment which causes loss, damage or suffering can be attributed to the employer. Therefore, once the doctor was an employee of the hospital then all his/her acts or omissions are attributed to the hospital. However, if the doctor was an independent contractor of the hospital that is where the hospital does not have any control in how the doctor carries out his functions but the doctor’s only responsibility is that he ought to perform the duties under his contract at the standard required; then the hospital is not liable. Where the doctor sets his own fees and work hours then he is not an employee.
Intensity. The more intense the mental anguish, the better chance you have of proving that your emotional distress was severe enough to deserve compensation. In some cases, however -- particularly, cases alleging negligent (rather than intentional) infliction of emotional distress, courts will typically require some sort of physical injury as well.
The keys are 1) establishing the medical standard of care, meaning the level of care that was appropriate under the circumstances, and 2) demonstrating how the defendant fell short of meeting that standard. And in almost all cases, you’ll need the help of a medical expert witness to help you establish these things. An experienced medical malpractice attorney will be part of a network of professionals -- doctors, consultants, medical experts who have served in a variety of cases, and other medical malpractice attorneys -- and will utilize this network to locate and hire the right medical expert for your case.
While an investigation against your doctor could lead to the revocation of his license, such action is rare. Only in the most extreme cases, where the Board feels that your doctor is a threat to the well-being of his patients, will his or her license be revoked. The Board could decide to take lesser action such as limiting his license, issuing a censure and reprimand, or require him or her to attend training.
In order to prove that the defendant's conduct was extreme and outrageous, the plaintiff must prove that the defendant's behavior was unacceptable and uncivilized behavior that a reasonable person in the plaintiff's position would believe the conduct was extreme and outrageous. Plaintiff's sensitivity is irrelevant since the standard is viewed objectively.
In most states, first responders in a medical emergency situation (such as an EMT or a firefighter) are protected from lawsuits unless the first responder does something reckless or intentional. This protection for first responders does not apply to emergency rooms in hospitals, although in some states an emergency room doctor must act with gross negligence to be held liable for harm that occurs before the patient is stabilized.
However, our legal system is set up in such a way where monetary damages is not only a way to compensate persons for lost wages, medical bills, and pain and suffering; it is also there as a way to hold doctors accountable for their actions. Without the threat of monetary sanctions and lawsuits, doctors would lose some motivation for conducting their professional lives in a careful and cautious manner. Furthermore, if you doctor did negligently injure you or a loved one, bringing suit against him may serve as a wakeup call and could possibly prevent him from injuring someone else in the future.
“This is a good step; it provides an avenue for potential litigants to engage with service providers they believe have been negligent. Such a process assumes the willingness of both parties to engage in good faith, and to compromise, if this is appropriate,” Dinnie says. “Where the matter at hand is relatively simple and perhaps the quantum of the possible award is not that significant, it provides a way forward. I am not sure how effective such an option would be in a more complex case where the stakes were higher, the possible longevity of the victim was in dispute and the quantum of the award was higher.”
We offer a completely free, no obligation Medical Negligence Claim Assessment. We understand that suing your GP may not be an easy decision so we are here to help and advise you. We will take the time to listen to your complaint, and then explain whether you can sue a doctor, how long it might take, how you can fund the claim and how much compensation you might receive.
For example, the standard of care for an eight-year-old child with a cough who is complaining of chest pain would be different than the standard of care for an 80-year-old man who’s complaining of the same symptoms but has smoked a pack of cigarettes daily for most of adulthood. In the case of the child, a reasonable, competent doctor would probably diagnose and treat the child for bronchitis, but that same doctor would run tests to determine whether the elderly smoker had lung cancer.
Since 1988, the law firm of Kennedy, Johnson, Schwab & Roberge, L.L.C., located in New Haven, has provided aggressive and knowledgeable legal representation to people injured due to medical malpractice cases throughout Connecticut. Our attorneys have more than 150 years' combined experience fighting health care professionals for fair compensation in medical malpractice and medical negligence cases, including cases involving failure to diagnose serious injury.

First, you need to figure out what the legal wrong was that you believe could form the basis for a lawsuit. Once you have figured out what it might be, you will need to research the elements of the case. Just because you feel certain something is wrong and should be addressed by the courts does not mean that it will resolve itself. You have to go through some very specific processes to secure your rights, and failing to do so could jeopardize your claim. These rules and procedures are not secret, and are actually quite easily found, but only if you know what you are looking for, where to look, and that you even need to look in the first place. This is why most people opt to hire an attorney rather than run a case on their own. Attorneys are specially trained and familiar with these procedures, and much less likely to miss something than someone without this experience who is trying to navigate this process for the first time.
Thomas found a medical malpractice attorney to file a lawsuit on her behalf. But then he withdrew, she said, because he wouldn’t make much money if they won. Thomas had just started a consulting business and didn’t make much. Because economic damages in lawsuits are largely based on lost income, she was told the potential rewards weren’t high enough, she said.
In most cases, only the primary physician (your doctor) can be sued for misdiagnosis. In rare cases, other health care professionals may also be liable if their negligence caused or contributed to the patient’s harm -- including nurses, lab techs, and any specialists who may have seen the patient. The hospital or health care facility where the doctor practices usually cannot be sued for harm caused by misdiagnosis. That’s because most doctors are independent contractors, not employees of the hospital, so the facility can’t be held legally responsible for the doctor’s negligence.   

You will want to incorporate as many of these factors into your claim as you can. In addition, you will want to consult a personal injury attorney. Proving these types of cases can be very difficult, and an attorney can help guide you through the process and strengthen your case.schedule a free consultation with a personal injury and accident law firm.


If a doctor fails to make an accurate and timely diagnosis of a harmful medical condition, patients may pursue a legal remedy by filing a medical malpractice lawsuit. One key question in these kinds of cases is whether the doctor breached the applicable "medical standard of care" under the circumstances. In other words, would a similarly-trained doctor in the same medical community have spotted the health problem (or identified it within a shorter period of time)? In the sections that follow, we’ll discuss some common misdiagnosis scenarios, and illustrate how a medical malpractice case might proceed. 
1. When a person comes into a medical facility and asks to be evaluated, the hospital must provide a medical screening examination (MSE) to determine if there is an emergency medical condition (EMC), including active labor. The hospital may not decide on treatment based on your ability to pay and may not delay treatment to your detriment because they want to prove you can pay, such as pre-authorization from private health insurance. Thus the statute puts your welfare above the pocketbook of the hospital. The statute requires the hospital to use the medical equipment on hand, such as xray, CAT scan, MRI, EMG, EKG equipment as part of the emergency medical screening (EMC) process. So if the hospital just figures you are ok without doing tests, they may be liable under EMTALA. EMTALA applies to any patient coming in to the hospital, not just indigent patients.

Damages from pain and suffering are considered “general damages” and are distinguishable from “special damages.” Hospital bills, loss of income, and certain out of pocket expenses are examples of special damages because a plaintiff can provide a bill, receipt, or work contract to show the money that was lost or paid. Pain and suffering, on the other hand, is not quantifiable in a precise, mathematical way.
I fear misdiagnosis cases a lot. This is particularly because of the statute of limitations and its unforgiving nature in situations like this. Whereas there are exceptions in the statute of limitations for continuing treatment of that condition (which once misdiagnosed, that isn’t the case anymore) and the foreign object discover rule, in misdiagnosis cases these exceptions don’t work. More importantly, if a doctor misdiagnoses the condition, that mistake might not manifest itself until after the statute of limitations expires! Meaning, the patient cannot sue!
Complaints that hospitals can’t resolve—each health authority has a Patient Care Quality Office to deal with complaints that hospitals cannot resolve. Each health authority also has a Patient Care Quality Review Board. They review complaints that the Patient Care Quality Offices have not resolved. For more information, call 1.866.952.2448 or see the Boards’ website.
I attempted to get recompense for my elderly mother after medical neglect that resulted in her losing her ability to walk, additional surgeries, and months of pain. I had no idea WHY the lawyers I contacted didn't even want to listen to the details. Now I know, and am disheartened to learn the reason for their disinterest. I've never sued anybody, am not one of those people who would sue when I dump coffee in my lap. But when one has a legitimate reason and legitimate damages, it's horrendous that our legal system provides no avenue of recompense for actual damage that is life altering.
In addition to damages that are awarded to the injured patient, the patient’s family may recover compensation for loss of care, companionship, love and affection. If the medical malpractice victim dies, family members may be compensated for their wrongful death. Wrongful death damages may include medical and burial expenses, loss of income, emotional suffering, and loss of the deceased patient’s companionship and affection.
Another potential cause of action is intentional infliction of emotional distress. This is based on a doctor’s outrageous conduct that intentionally or recklessly causes a patient to suffer severe emotional distress. This must be beyond a mere slight as it must be something that would outrage society. The common law tort required a physical manifestation of injury, but most jurisdictions no longer require this element. This cause of action has been successful in some cases in which patients recorded their doctors performing medical treatment while mocking and ridiculing the patient to a serious degree.

Often, people may have viable bases for lawsuits but fear that they are not allowed to file their claim without a lawyer. As a result, concerns over paying attorney fees may keep some from following through with their claims, meaning that the legal wrong may go unaddressed and the person who was wronged may go uncompensated. But, it is possible to file a lawsuit without a lawyer. This article will tell you how.
Ways an accident has affected you can be very personal in nature. For instance, an injury victim may have been a member of a bowling league with her spouse for twenty years prior to an accident occurring. They bowled together every Thursday evening with their friends and this weekly ritual became a cornerstone of bonding in their marriage. Following the accident however, the injury victim suffered neck injuries that prevented her from being able to bowl. She begins to feel isolated from her spouse and her friends. Thursday evenings are now spent utilizing heating pads and taking prescription narcotics in attempts to alleviate the pain.
So, the best thing you can do if you think you have a good case against a hospital is to be a good client. Before you meet with a lawyer, make sure you know as much of the story as possible. How was your life before the medical negligence occurred? How was it after? Do you have any medical records from the hospital where you were harmed? You may not be asked for them at the initial meeting, but keep in mind that the lawyer may need your medical records to determine if there is medical negligence and if so, if suing the hospital would likely result in a trial verdict or settlement.
The mother filed a lawsuit against the theme park, alleging that her son’s “skin had a negative reaction to the paint used on his face at Legoland that has caused him great pain and suffering, as well as two years of humiliation by other child and deep emotional distress.” They are seeking more than $15,000 in damages for Legoland’s alleged negligence and for negligent infliction of emotional distress.
Our most vulnerable people, including those who have experienced extreme states such as ‘catatonia’, hearing voices, delusions, etc are being institutionalized, forcibly shocked and medicated, and routinely stripped of their civil liberties; Meanwhile, we continue to argue how many angels can fit on the tip of a needle and focus our limited resources on the worried well.
Tennessee used to require plaintiffs to prove physical effects from the stress in order to receive compensation. But in this case, the court outlined a more nuanced set of criteria for determining emotional distress. The ruling listed six factors for consideration when deciding to award damages for the intentional or negligent infliction of emotional stress:

We offer a completely free, no obligation Medical Negligence Claim Assessment. We understand that suing your GP may not be an easy decision so we are here to help and advise you. We will take the time to listen to your complaint, and then explain whether you can sue a doctor, how long it might take, how you can fund the claim and how much compensation you might receive.


Suing a hospital for misdiagnosis is dependent on whether the doctor is an employee of the hospital. A hospital is liable for all damage committed by their employees once the employee is performing his/her duties. The principle of employer’s liability states that any act or omission by the employee in the course of their employment which causes loss, damage or suffering can be attributed to the employer. Therefore, once the doctor was an employee of the hospital then all his/her acts or omissions are attributed to the hospital. However, if the doctor was an independent contractor of the hospital that is where the hospital does not have any control in how the doctor carries out his functions but the doctor’s only responsibility is that he ought to perform the duties under his contract at the standard required; then the hospital is not liable. Where the doctor sets his own fees and work hours then he is not an employee.

Jury awards for pain and suffering may vary depending upon socio-economic and political factors within the community from which the jury is drawn.[2] In most states the maximum monetary amount awarded for pain and suffering is capped at what is listed in the particular suit or written complaint. In some jurisdictions there are maximum amounts set in law which a jury may not exceed in awarding damages.

Returning to the fender bender case example, in small claims court it would be pretty easy to make your case.   You could produce a police report showing the reporting officer’s conclusion that the other driver was likely at fault. You could produce two sworn written statements from eyewitnesses saying that they saw the other driver run the stop sign. And you could produce two repair estimates to establish what you lost.
Significantly, your attorney can only use these examples of loss to illustrate your injuries if you provide it to him or her. If your case is in litigation you will most likely sit for a deposition (your testimony given under oath before a court reporter who is taking down questions directed to you by the defense attorney and your responses). In preparing for your deposition, your attorney may ask you to explain how this accident has affected your life. Be ready to give real life examples so that your attorney can best advocate on your behalf.
People have a tendency to downplay their injuries because they do not want to be seen by others as complaining or needy. In fact, those that are more severely injured tend to downplay their injuries the most. Before you are convinced that your injuries don’t warrant some type of compensation, it is best to be examined by an independent medical expert. You may be entitled to lost wages, medical expenses, or compensation for pain and suffering.
Apparently, most of the medical malpractice lawsuits in the US are related to medical misdiagnosis due to the doctor’s negligence or failure to follow a standard procedure. They are also more common in the outpatient department since both the private sector and the government gives more focus on the safety of the patient who is under treatment in a hospital.
The manner in which medical malpractice is addressed in countries around the world varies widely. For example, many countries do not permit jury trials. In these locations, judges or administrators may make the final decision. Moreover, malpractice awards, even when they are given, are often much lower than amounts received in the United States, giving rise to the argument that injured patients may not be fully compensated for their losses in overseas jurisdictions. Plus, there are logistical difficulties. A foreign lawsuit necessitates retention of a foreign attorney and physical presence in the foreign country for legal proceedings. Importantly, many foreign countries do not permit attorneys to take cases on a contingency fee basis.
Thomas found a medical malpractice attorney to file a lawsuit on her behalf. But then he withdrew, she said, because he wouldn’t make much money if they won. Thomas had just started a consulting business and didn’t make much. Because economic damages in lawsuits are largely based on lost income, she was told the potential rewards weren’t high enough, she said.
The settlement a person receives for their pain and suffering depends on many factors. This includes the severity of the injury, type of medical treatment received, the length of recovery time, and potential long term consequences of the personal injuries. In addition to physical pain, claimants can also cite emotional and psychological trauma in their pain and suffering claims. For example, a visible scar on the face can lead to painful feelings of constant embarrassment and insecurity.
Sally was injured in a car accident. Her doctor ordered an MRI to see if she tore any ligaments or tendons, or ruptured a disk in her back. The cost of the MRI was $2,000. The doctor also ordered a CT scan to see if Sally’s internal organs were damaged. The cost of the scan was $1,500. When it comes time to settle her claim, Sally will be reimbursed $3,500 for these special damages.
You must decide how you are going to fund the legal process. Most parties Personal Finance spoke to warned that the legal process is adversarial, long, arduous and emotionally and financially draining. How long it takes depends on the availability of court dates in a creaking, overloaded legal system. At your first appointment, your lawyer will give you a broad indication of the process involved and the likely costs. There are four options:
Bringing a medical malpractice claim is not a thing to be taken lightly. Malpractice lawsuits are expensive, time consuming, and can open you up to public inspection. And, unlike most other types of personal injury claims, case trends show a tendency toward favoring doctors and other care providers, not injured plaintiffs. Settlement, too, is far more difficult in a malpractice case due to a doctor’s ability to refuse to settle, regardless of whether his or her insurance company wants to pay. Simply put, even the most winnable malpractice case is still an uphill battle with little or no guarantee of success. Should you sue your doctor for malpractice? Perhaps, but consider what follows before you do.
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