Can I make a legal claim for medical misdiagnosis?

If a medical professional failed to diagnose your medical condition, or made a wrong diagnosis, you may have a legal claim.

Medical misdiagnosis can have severe consequences. We’ve all heard the news stories about people who’ve developed cancer after a scan failed to detect a tumour. Or the patient sent home from an emergency visit to hospital, only to have a heart attack or stroke soon after.

When there’s been a wrong diagnosis, a legal claim for medical negligence may help with the financial burden of living with the medical consequences.

What is medical misdiagnosis?

Medical misdiagnosis happens when a medical professional:

• Fails to diagnose a medical condition, or
• Diagnoses the wrong medical condition, or
• Is delayed in diagnosing a medical condition

Medical misdiagnosis can also happen when a medical professional fails to refer a patient to another practitioner for an opinion.

Medical professionals include:

• Doctors
• Midwives
• Nurses
• Radiologists
• Surgeons
• Dentists
• Any other medical practitioners who are responsible for giving a medical opinion or making a diagnosis

There must be evidence that the practitioner should have done something differently to prove a misdiagnosis. For example, in the case of a stroke patient, if a scan revealed a bleed on the brain, but the patient was sent home and told to take some paracetamol and to rest, there may be a case for medical misdiagnosis because the practitioner had enough evidence to take different action.

How should a medical professional make a diagnosis?

It’s challenging to pinpoint criteria for how a medical professional should make a diagnosis, especially because every situation is different. However, if you think about the diagnosis process when you visit your local doctor, there are some basic elements all medical assessments have in common:

• The doctor asks you to describe your medical issue
• Once you’ve provided the necessary information, the doctor asks some follow-up questions
• The doctor assesses your symptoms and may do a few clinical assessments, for example taking your temperature or blood pressure
• The doctor may request other tests and investigations, for example, blood tests, an ECG or MRI

With each step, the doctor gets a little bit more information. The aim is to reduce the number of medical conditions and make a diagnosis. Then the doctor can work out a treatment plan.

Let’s take another look at our headache example.

You tell your local doctor you’ve had a severe headache for two days. The doctor sends you home to take some paracetamol and rest.

The headache persists. You go back to the doctor. They ask about your stress levels and lifestyle. They order some scans. If the doctor finds something in the scans, they may refer you to a neurologist to further investigate.

Each enquiry helps the doctor narrow the field of potential causes to make an appropriate diagnosis and set up a treatment plan.

However, imagine if something goes wrong with one of the steps. Imagine if the symptoms are severe. Perhaps the doctor should have sent you for scans immediately.

This scenario may be a misdiagnosis or failure to diagnose. However, on its own, it’s not enough to show there was medical negligence.

What’s required to prove medical negligence?

In some circumstances, you can make a medical negligence claim for misdiagnosis (or failure to diagnose). It’s our job to work out whether you meet the legal requirements for a claim and to help you make your case. The requirements are:

1. Failure to provide a standard of care

There must be evidence that the medical professional failed to provide the accepted standard of care and failed to diagnose you. One of the considerations is whether another similar medical professional would have diagnosed you differently.

Proving this is a good step in establishing the medical professional breached the duty of care owed to you, the patient.

However, a failure to provide a standard of care doesn’t mean the misdiagnosis caused your medical problem. You must also show causation.

2. The misdiagnosis must be the cause of an injury or medical condition

The misdiagnosis (or failure to diagnose) must have caused the injury or illness. This concept is known as causation. Proving a misdiagnosis isn’t enough. You need to be able to show a link between the misdiagnosis and your injury or illness.

For example, imagine you have a broken leg. An x-ray image shows the break. Even if the radiologist didn’t diagnose it, they’re not at fault for your fracture or the problems it’s caused. However, they may be at fault for any injury suffered as a result of the break not being appropriately treated.

Let’s say the fracture wasn’t diagnosed at first. There was a delay of many days before casting your leg. If there wasn’t a further injury during that time, there might not be any causation.

However, if the failure to diagnose leads to a further injury such as compartmental syndrome or shortening of the leg, there may be causation.

3. The misdiagnosis caused damage

You need to be able to show because of the misdiagnosis, you suffered damage.

For example, let’s consider the delay of many days before casting the broken leg. If you then had to take six weeks off work to heal, a delay of a few days wouldn’t have much impact.

However, if the delay caused you to develop compartment syndrome or shortening of the leg, you may need 12 weeks off work instead of six. Or you may no longer be able to do your job because of the long-term effects of the injury. You may be able to make a medical negligence legal claim for that damage.

How do I work out whether to make a legal claim for medical misdiagnosis?

To work out whether you’ve got  a legal claim, you need to consider whether the misdiagnosis has caused you to:

• Require more significant medical treatment
• Have treatment that wasn’t otherwise required
• Suffer a worse medical condition
• Suffer more severe damage or financial loss

If any of these apply to you, or if you’re not sure, it’s worth speaking to us. We’re medical negligence specialists. Come in for an obligation-free first interview, and we’ll help you work out your legal situation.

A strict time limit applies to many medical claims. So the sooner you contact us, the better.

The bottom line

If you’ve suffered further injury or illness because of medical misdiagnosis or failure to diagnose, you may have a claim for medical negligence. We’ll help you work out whether you satisfy all the requirements, what to claim, when to claim, and how to claim. Talk to us today. We’ll see you through.

By Dionne Franklin

Dionne Franklin is a personal injury lawyer with years of experience, especially in medical negligence claims. Dionne’s clients appreciate her empathy, dedication and clear and consistent communication. You will too. Give her a call today to find out more.