Can I Sue for a Misdiagnosis?
March 17, 2022
We depend on health care providers to diagnose, treat, and manage our illnesses and injuries in a competent manner. When a medical professional fails to diagnose an injury or condition or misdiagnoses an illness completely, and the patient is harmed as a result, that patient can sue for medical malpractice.
The problem is more widespread than you might imagine. More than 32 percent of malpractice cases involve a misdiagnosis. This discussion explains the rights and responsibilities of your health care provider and what to do if you suspect a misdiagnosis negatively impacted your health and well-being.
What Is the Medical Standard of Care?
To understand what constitutes medical negligence under the law, it is helpful to begin by explaining the medical standard of care. Medical malpractice cases rest on whether a provider or facility was somehow negligent in a patient’s diagnosis or care.
Therefore, there must be some way to measure negligence. The metric is referred to as the appropriate medical standard of care, which should be applied in the situation involving that patient.
This is the universally accepted level of care that a health care provider with similar training and experience would have provided for the same patient in the same or similar circumstances.
How Is the Standard of Care Established?
There is no single, definitive course of treatment for every patient. The appropriate standard of care involves many different variables, including the patient’s age, health history, genetics, lifestyle, and diagnosis.
Typically, for the purpose of malpractice litigation, a qualified expert medical witness testifies as to what the appropriate standard of care was, given the circumstances of the case at hand. The expert also testifies about how the provider, or the defendant, deviated from that standard of care, and how that deviation caused the plaintiff’s injuries.
This standard of care is really the cornerstone of every malpractice claim. Malpractice only exists if the provider fell short of the standard of care and the patient was injured as a result.
What Kinds of Health Care Providers and Facilities Commit Medical Malpractice?
It is not just a regular primary care doctor that can potentially commit malpractice. A wide range of medical professionals and practices can be liable for malpractice.
They include:
- Anesthesiologists
- Dentists
- General practitioners
- Gynecologists
- Hospitals
- Nurses
- Nursing homes
- Obstetricians
- Pediatricians
- Psychiatrists
- Radiologists
- Surgeons
Medical Malpractice from Misdiagnosis
Let us explore how the appropriate standard of care applies in a case in which someone has been misdiagnosed. This scenario involves a real case from the state of New York.
A 40-year-old woman discovered a lump in her breast during a self-examination. Her doctor referred her for a mammogram. The radiologist treating her reviewed the scans and diagnosed her with a clogged milk duct. The patient was told the condition would go away on its own. But it did not. In fact, a year later she was correctly diagnosed with breast cancer.
During that year, the cancer metastasized, or spread to other parts of her body. She underwent a mastectomy along with radiation and chemotherapy. By the time her case went to trial, the cancer has spread to her blood and bones. She did not have much time left to live.
The jury returned a $15 million verdict for her, based on the radiologist’s misdiagnosis and the lack of follow-up on her condition. Yes, that sounds like a lot of money. But for the patient and the loved ones who have to say goodbye, the money is reasonable considering how that misdiagnosis changed their lives forever. Her outcome might have been vastly different had she been accurately diagnosed when she first felt that lump.
Other Examples of Misdiagnoses
We have described a case in which cancer was mistaken for a minor condition. Here are some other examples of medical errors involving a wrong or delayed diagnosis.
Heart attack symptoms are sometimes mistaken for panic attacks or indigestion. Stroke is also confused for several, less-serious conditions, including migraine. Staph infection can be diagnosed as the common flu. And now that COVID-19 is part of our reality, symptoms of the virus can be confused with flu or the common cold.
In addition to misdiagnosis, these errors may also constitute malpractice:
- Misinterpretation of laboratory results
- Failure to screen for a certain condition
- Failure to refer the patient to the appropriate specialist
- Failure to follow-up and investigate a patient’s symptoms
- Failure to conduct a comprehensive clinical examination
The Requirements for Filing a Malpractice Lawsuit
The fact is not every medical mistake rises to the level of malpractice. Physicians, nurses, and other providers are human, after all. And health care is not a perfect art or science. Some medical conditions are just more challenging to diagnose and treat.
Certain conditions must exist for a provider’s actions to meet the legal threshold of medical malpractice. First, it must be shown that a doctor-patient relationship existed. You cannot sue a physician if you were not under their care. Your doctor has a duty to provide the appropriate standard of care, as described above.
Next, the doctor must have been negligent in some way, providing care that fell below the standard. In other words, the doctor breached their duty to provide appropriate care. Causation must also be shown. Causation is the link between the doctor’s action and the patient’s injury.
Finally, the patient and their lawyer must rove the medical mistake resulted in damages for the patient. Maryland allows economic damages, which are damages that have an exact dollar amount. These might include hospital bills and medication costs. Non-economic damages for less quantifiable losses such as pain and suffering are also permitted under Maryland law.
Statute of Limitations for Maryland Malpractice Claims
Anyone considering litigation for medical malpractice should be mindful of the time they have to bring a claim in the state of Maryland. Generally, the statute of limitations begins on the date of the injury.
The Maryland Courts and Judicial Proceedings Code section 5-109 states that adult medical malpractice patients have five years from the date of injury or three years from the discovery of the injury to file a claim.
The statute of limitations is slightly different for minors in Maryland. They have three years from their 18th birthday to file a claim in civil court for malpractice. If someone tragically passes away as a result of a misdiagnosis or other medical error, their family has three years from their death to file a claim.
As a Patient, How Do I Protect Myself from Misdiagnosis?
After reading all of this information about the risk of medical mistakes, you are probably wondering how to protect yourself and your health.
We do put an enormous amount of trust in our doctors and specialists to provide a high level of care. This is appropriate. They dedicate considerable time to learning their profession. But as patients, we also have a duty to advocate for ourselves every step of the way.
Follow your doctor’s recommendations, unless they are making you feel worse. Do not hesitate to ask questions about a diagnosis or treatment you do not understand. If your symptoms get worse, be proactive about getting help from another provider.
If you have concerns about a diagnosis, always get a second opinion. Ultimately, you know your body. Trust yourself when something does not feel right. No one is infallible, including your doctor.
Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Represent Patients Harmed by a Physician’s Negligence
If you or a loved one received substandard medical care and was injured as a result, the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton will advocate for you. We have extensive experience helping clients impacted by misdiagnoses pursue compensation for their pain, trauma, and medical costs. Call us today at 800-547-4LAW (4529) or contact us online to schedule a free consultation.
Our offices are conveniently located in Baltimore, Glen Burnie, and Prince George’s County, where we represent clients throughout Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.
