If for instance, you or someone you know had been misdiagnosed, then can you sue for misdiagnosis? The answer is yes, sometimes you can sue for a misdiagnosis but not always. The first thing you need to know is; were you harmed because of the misdiagnosis? And then you need to answer; were you able to receive a treatment that was not supposed to be given to you? Was it too late for you to get the treatment because you were misinformed? Or will something undesirable happen to you because the doctor did not catch it earlier?
Taking an active role in your own care can help you avoid being a victim of negligence in a fast passed emergency room. Answer all questions honestly and be clear about any past medical care including any medications, both prescription and over-the-counter that you are taking. Once discharged ask for a copy of the medical record and test results and have the attending doctor detail your treatment plan.
Current pain and suffering is the time period from the time of your injury, to the completion of all your medical treatment. Future pain and suffering are more broad, as the exact time frame is unknown. Your injury may cause you to endure both physical pain and discomfort, and emotional pain, such as depression, anxiety, post-traumatic stress, memory loss, or insomnia.
It isn’t surprising that you like your doctor. Otherwise, why else would you keep going back to him year after year? But so what? Liking your doctor shouldn’t keep you from suing him if he has caused you emotional and/or physical harm. Think about it – the legal system is around for a reason. It’s there to provide people with a way to receive compensation from someone who has harmed.
To establish whether or not your doctor has been negligent they will have to be shown to have been in a position where they owed you/the patient a duty of care and that you or the patient suffered direct harm as a result of their negligent management of this care. The decisions the doctor made and the treatment they gave will be assessed. If it is found that they acted in a way in which other doctors would not have acted, and this resulted in a negative effect, you will have grounds to make a successful medical negligence claim.
Medical malpractice insurance carriers generally require very large deductibles from their insured doctors. Furthermore, most states have laws that require doctors to report any claims of medical malpractice to a state-run board, which can result in higher insurance rates. Doctors may be willing to settle for an amount at or around the amount of their deductible, as it will abrogate the need for them to report the case. They are simply choosing to pay you the amount of the deductible instead of paying the insurance company. Seek counsel before accepting this type of settlement, as you need to be sure your future medical needs will be provided for.
Often, with major cases, focus groups are used to determine these kinds of situations. In a personal injury case focus group, a group of people volunteer to hear the facts of the case and then answer questions pertaining to the case so that the attorneys can get an idea of what the general public (and hopefully the future jury) is thinking. Knowing that a focus group of 20 people all thought the victim should be paid at least $50,000 can help a lot in determining a starting point.
Certainly, anyone who travels internationally could foresee a circumstance leading to medical treatment abroad. Automobile accidents, heart attacks, illness, and other unexpected medical emergencies can occur overseas during travel, just like they do at home. Moreover, the concept of “medical tourism” is popular with millions of Americans. Medical tourism refers to people that visit a country other than their own for medical treatment. Sometimes, people go abroad to seek treatment, such as a particular drug for a particular disease, that is not permitted in the United States. Other instances include people visiting countries that have well-trained doctors who can perform surgeries, both elective and otherwise, at a cost much less expensive than in the United States. In fact, savings can be as much as 88%, even after factoring in the cost of travel!
Others may be responsible—if a doctor delegates work to someone else, the doctor may still be legally responsible for the work. If a doctor leaves a patient in the care of another doctor, both doctors may be responsible. If an inexperienced intern performs the duties of a doctor, the intern has to give the same medical care the doctor would give. But a doctor can rely on the employees of a medical facility and expect that they’ll meet the standard of care required in their jobs. So if a doctor leaves proper instructions with a nurse who doesn’t follow them, the nurse, not the doctor, may be responsible. Or both may be. If a person is harmed by the negligence of another healthcare professional, they can sue that professional. They can also file a complaint with the regulatory body for that profession. For example, the College of Registered Nurses of BC licenses nurses. The Emergency Medical Assistant Licensing Board licenses paramedics.
But it doesn’t get much more complex than a medical malpractice case. You’ll need to prove complicated legal and medical issues like the applicable medical standard of care that the doctor should have complied with in your case, and you’ll need to be prepared to refute the other side when they come to the table with their own medical evidence. What’s more, many states require medical malpractice plaintiffs to jump through certain procedural hoops at various points in the case.
When it comes to determining the extent of physical pain, there are no computer programs to rely on. Each of us experiences pain differently. Even with today’s advanced medical technology, the best method doctors have for measuring a patient’s pain is a self-rated pain scale. This is when a doctor asks, “On a scale of 1 to 10, how would you rate your pain?”
As this article has made clear, it’s not easy to come up with a clear number that accurately accommodates for pain and suffering. How inconvenient or awful one person may consider a life-long back injury is not the same as another person. Likewise, how you determine a dollar amount is even trickier since both pain and how it affects someone is extremely subjective.
The study recommended reforming the system by increasing funding for legal services, so attorneys could be compensated for their time; making defendants who lose a case pay the plaintiff's attorney fees; or sending malpractice complaints to an administrative system with neutral adjudicators and medical experts so patients wouldn't need an attorney.
Damages from pain and suffering are, therefore, subjective. There is no formula and certainly no standardized calculation for pain and suffering. It is the job of the jury (or the judge if there is no jury) to determine what is fair and reasonable, which they will often do based on their own life experiences. The jury will consider whether the plaintiff is credible and sympathetic. This subjectivity means that damages from pain and suffering can vary tremendously from case to case -- even if the underlying injury is the same.
If you suffer mental anguish arising from a case of personal injury or medical malpractice, you may recover non-economic damages. However, in some jurisdictions, you may only be allowed to recover a specified maximum. Also, you will have to prove your injuries by a preponderance of the evidence. Talk with an experienced attorney to discuss the details of your case.
In fact, filing a civil suit against your doctor does not even guarantee that he will be investigated. In order for your doctor to be investigated, a complaint would have to be filed against him with the New York State Department of Health. The Office of Professional Medical Conduct (“OPMC”) is responsible for investigating complaints about physicians, physician’s assistants, and specialist assistants. An investigation may lead to a formal hearing before a committee of the Board for Professional Medical Conduct.
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.
Dr. Zaheer A. Shah, MD, JD (Attorney and Physician): The author of this answer is an Attorney-at-Law, licensed to practice law only in the state of Arizona and he is a board certified, Ivy League trained, practicing physician. Nothing posted on this forum by the author constitutes legal advice. Additionally, any medical opinions rendered on this forum in response to a particular question do not constitute medical advice. Opinions expressed herein are solely those of the author, and are neither privileged nor confidential. While an effort is made to offer accurate information, there is no guarantee as to accuracy.
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.
The timeline involved is going to be important should you have a diagnosis of cancer for a few reasons. You mentioned 2 years went by from the time you were told you had a UTI until you were told you might have Bladder cancer? Is that correct? You were seen 6 times over the course of 2 years and diagnosed with a UTI every time? How many times were cultures taken? How much time was it from when your culture came back negative until you were told you may have cancer? Answers to these questions are necessary in order to have a better understanding of the facts and potential theories of negligence.
However, if you were threatened or assaulted and then miscarried your baby, or were hospitalized because of a panic attack, your mental and emotional anguish is more apparent. Other physical signs of emotional distress might be ulcers or headaches. Also, it’s best if a doctor’s note is provided, from a doctor or psychologist, to support each claim.
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Script 420 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Doctors or healthcare providers are negligent if they fail to provide the standard of care that a reasonable doctor or healthcare provider practicing in the same area would provide in similar circumstances. If the negligence causes injuries or illness to a person, then the doctor or healthcare provider may be liable to pay damages (money to pay for the harm done) to the person. It’s no excuse for a doctor to say, “I did my best. I just didn’t know any better.” If the doctor should have known better, they may be liable. For example, let’s say that you see your doctor because you are not feeling well and your doctor prescribes a drug to treat the symptoms you described. You take the drug and it harms you. It turns out that it was not appropriate, considering your medical history and the other drugs you were already taking. If other doctors with a similar practice would not have prescribed the drug, your doctor may be negligent.
When a person is on the verge of suing someone for medical misdiagnosis, he or she needs to get the opinions from other doctors about the standard procedures and find out where the doctor, who is being sued, failed to conduct before giving the patient’s diagnosis. If the court will see that there was an occurrence of a medical misdiagnosis, then you can recover a considerable sum for going through the effects of a misdiagnosis.
Damages for negligence—if you prove there was negligence and the negligence caused your injury or illness, a court may order the doctor, hospital, or healthcare provider to pay you damages for the harm the negligence caused. This can include lost earnings, medical and other expenses, pain and suffering, and loss of enjoyment of life. This last category is the court’s attempt to compensate you for the effect of the negligence on your life, in general. The doctor is responsible only for the harm that their negligence caused. For example, say you consented to surgery that would require you to take 2 months off work to recover, if done properly. But the surgeon was negligent and as a result you had to take 6 months off. In this case, you would be paid only for the extra 4 months of lost earnings caused by the negligence. You would not be compensated for the first 2 months off because you had consented to that. And you still would have had to take the 2 months off if the surgery had gone as planned.
Be aware that even though you can do your own calculations, only an experienced, competent lawyer can help you get the highest settlement possible for a serious injury. Insurance companies use a settlement calculator to determine how much you will be compensated for the medical expenses, devastating pain and suffering, emotional distress and loss of income relating to your car accident, or another accident claim.
Plaintiffs can also sue for the negligent infliction of severe emotional distress that they experienced because of someone else’s injury. This types of suit occur sometimes when a person has to witness the injury or death of a loved one caused by another person’s negligence. However, to succeed on such a claim one must be able to prove that their distress was an immediate and foreseeable result of the defendant’s behavior. In addition, the plaintiff generally must physically witness the accident in order to be able to recover for this type of claim.
"The opinion upholding the judgment recognizes that although not every fiduciary relationship will give rise to a claim for damages, where the specific professional responsibility of an attending physician is to convey accurate information, then failure to do so can give rise to liability if the physician's breach results in unusual and extreme emotional distress on the part of the plaintiff," Raynes said in an email.
Special medical malpractice review panels. Many states require the patient to first submit the claim to a malpractice review panel. This panel of experts will hear arguments, review evidence and expert testimony, and then decide whether malpractice has occurred. The panel decision does not replace an actual medical malpractice lawsuit, and the panel cannot award damages, but it's a hoop the patient must jump through before getting to court. The findings of the review panel can be presented in court, and courts often rely on a review panel's finding of no medical malpractice to throw out a case before it goes to trial.