You can sue a doctor for a misdiagnosis if it rises to the level of medical malpractice. Misdiagnosing an illness, not diagnosing at all, or delaying the diagnosis is of an illness is one of the most serious kinds of medical malpractice. To prove your case, attorneys must show negligence and that you suffered injuries from the misdiagnosis. Both elements are not always present in misdiagnosis cases.
When Can You Sue a Doctor for a Misdiagnosis?
Two years is the statute of limitations for medical malpractice in Illinois, so there is no time to waste if you suspect or know that a misdiagnosis has occurred. You can discuss whether you have a case with medical malpractice lawyers.
People have cases for medical malpractice if they can show negligence and adverse consequences. A misdiagnosis by itself that led to no negative outcomes is unlikely to be enough for a civil case. Even some situations of misdiagnosis with negative outcomes do not lead to a lawsuit because the doctor was still following the expected standard of care.
The main question your lawyers consider when reviewing your case is whether the doctor breached the typical “medical standard of care” for your situation. Another way to put it is this: Would another doctor in the same situation have made the misdiagnosis, too? Would another doctor have made the correct diagnosis, or caught the error sooner?
Lawyers consider four aspects when reviewing the potential to sue a doctor for a misdiagnosis: duty, breach, causation, and damages. Duty relates to whether a doctor-patient relationship existed. If it did, your doctor had the duty to act in a reasonably competent manner. Your lawyers also review if other parties could be at fault. Other potential defendants might include the pharmacy, nurses, specialists, and lab technicians.
Hospitals and healthcare facilities are not typical defendants because most of the doctors who practice there are independent contractors, not employees. However, hospitals and healthcare facilities can be sued in some instances
Breach goes to negligence and professional standards of care. Not all doctors who misdiagnose perform breaches of care because it is possible most doctors in the same situation would make the same diagnosis. Causation covers the aspect of harm and considers how harmful the diagnosis was to the patient.
Then there are damages and compensation to consider. What type of suffering have you had to endure? Common effects of a misdiagnosis are steep past and future medical bills and treatments, home modifications, child care costs, lost wages, transportation costs, funeral bills, scarring and disfigurement, pain and suffering, loss of a loved one, and loss of future earning capacity.
The personal toll of misdiagnosis is tremendous. Some people die from it. Others endure years or even a lifetime of constantly seeking answers and undergoing ineffective treatments. It can mean years of pain and mental and emotional strain on top of a huge financial burden.
Misdiagnosis affects people’s relationships with themselves and their loved ones. It undercuts their ability to work and play. The toll may continue even after a medical professional makes a correct diagnosis.
What Is a Misdiagnosis?
Misdiagnosis takes many forms. It includes literal misdiagnoses when doctors apply the wrong diagnosis to a case. Not diagnosing at all or delayed diagnosis can also fall under the misdiagnosis umbrella.
A misdiagnosis can occur when doctors do not correctly consult with patients about their symptoms, do not screen for specific medical conditions, fail to refer patients to specialists, misinterpret lab test results, and fail to adequately follow up and investigate potential causes of reported symptoms.
The Society to Improve Diagnosis in Medicine reports that about 40,000 to 80,000 people die each year from misdiagnosis complications at U.S. hospitals. About the same number of people struggle with permanent disability from misdiagnosis, and these figures cover just hospitals. Cancer, infections, and vascular events account for about three-fourths of all misdiagnosis deaths and disability cases. The true picture is almost certainly much more staggering when it incorporates all medical settings.
About 12 million people get misdiagnosed every year, and experts estimate about half of these misdiagnoses have the potential for harm. Examples of misdiagnosis include the following.
- Lupus misdiagnosed as rheumatoid arthritis, fibromyalgia, or chronic fatigue syndrome
- Heart attack misdiagnosed as panic attack or indigestion
- Asthma misdiagnosed as recurring bronchitis
- Parkinson’s is misdiagnosed as stress, stroke, or Alzheimer’s
- Lyme disease is misdiagnosed as mononucleosis, depression, or flu
- Staph infection misdiagnosed as flu
A doctor who does not run a mammogram or biopsy test for patients at risk of breast cancer risks misdiagnosing cancer as something else.
Diagnostic error is most prevalent in emergency medicine and primary care because of the sheer number of patient visits and the fact that many patients seek help at an earlier stage when all of their symptoms may not have fully emerged and underlying conditions are trickier to pin down.
Misdiagnoses occur due to doctor’s negligence, and both human and systemic elements can play a role. The medical world knows of more than 10,000 diseases, and more than 3,500 lab tests exist.
By comparison, the number of symptoms is small. A single symptom could have hundreds of potential causes and testing choices. Going further, healthcare systemic processes link a staggering amount of technologies, procedures, and practices. Plenty of opportunity exists for miscommunications and treatment gaps.
The obstacles to accurate diagnosis include a lack of measures for feedback (doctors may never get informed if a diagnosis they made was wrong or changed) incomplete communication when patients move among doctors, departments, and facilities, limited tools, resources, and support for making diagnoses, a complex diagnostic process, a lack of clarity for processes in which patients can report changes in symptoms or ask questions, rushed appointments that hinder thoughtful data gathering for a working diagnosis, and a lack of research on measures to improve diagnostic processes. In other words, it is not always easy to prevent a medical misdiagnosis.
Proving Negligence in Medical Misdiagnosis Cases
The National Academies of Sciences, Engineering, and Medicine says that every person in the United States will have a condition misdiagnosed at least once during their lifetime. Some of these misdiagnoses rise to the level of negligence.
Medical negligence is not always straightforward to prove, nor is it necessarily simple to sue a doctor for misdiagnosis. Lawyers hire medical experts to look through records and other documentation and talk to people involved to show negligence. The process can take weeks or even months. This is one reason it is critical to move as quickly as possible once you suspect or know a misdiagnosis has occurred.
Doctors have duties to patients to diagnose and treat their conditions as accurately and quickly as possible. As part of these duties, doctors must rule out life-threatening conditions. To prove negligence, you must show a doctor/patient relationship existed (duty of care), that the physician neglected to accurately and quickly diagnose the condition and provide appropriate, prompt treatment, and that the errors likely and substantially prevented you from a cure or better prognosis or outcome.
Differential diagnosis is the diagnostic process doctors typically follow. They review patients’ symptoms and complaints, assess their medical history, and perform a physical examination. Doctors then list potential diagnoses and weigh the strength of each by asking patients relevant questions about their medical history and symptoms. Doctors may then order diagnostic tests or refer patients to specialists.
Diagnosis is often an ongoing investigation, with potential diagnoses being ruled out. To prove negligence, patients must show that a doctor in the same specialty in the same case (or a similar case) would not have made a misdiagnosis.
One way to show this is to outline that the doctor failed to include the correct diagnosis on the differential diagnosis list, while a reasonably competent physician would have. Another way to show negligence is by proving that, while the doctor did include the proper diagnosis on the differential diagnosis list, he or she did not seek specialist opinions or get the proper tests done. In other words, the doctor did not act to rule out the diagnosis.
In some cases, doctors misdiagnose because they used inaccurate tests or inaccurate radiology films in the diagnosis process. Equipment might have been defective, tests performed incorrectly, or diagnostic film misread, for example. Doctors’ negligence in these cases is less clear, but multiple people can be involved in misdiagnosis and sued.
Some doctors misdiagnose because they are under the influence of alcohol, drugs, pain medication, or another substance. Other times, they may be outright careless or reckless with a diagnosis.
Perhaps a doctor relies on his memory of earlier patient interactions and recalls symptoms incorrectly when he should have checked the medical history for confirmation. Maybe an urgent personal issue arose for the doctor, and he or she forgot to order follow-up testing or ended an appointment early, figuring everything was probably OK.
What Happens After a Misdiagnosis?
Sometimes, nothing much happens after a misdiagnosis. Patients may not even realize one occurred. They go home and eventually get better, despite receiving the wrong diagnosis or treatment. Sometimes, the treatment is the same for multiple conditions, so no “harm” is necessarily done if patients are misdiagnosed but given the same treatment they would if correctly diagnosed.
Of course, some patients suffer horrible outcomes such as death, permanent disability, and disability lasting a few years. Here are examples of common outcomes of medical misdiagnosis:
- The misdiagnosis delays the right diagnosis, for example, a patient getting treated for kidney stones and then, a few hours later, being diagnosed with appendicitis instead and receiving treatment for it
- The misdiagnosis worsens the medical condition, leading to a heart attack
- The misdiagnosis causes significant harm or wrongful death, such as misdiagnosing cancer that ended up being terminal due to the wrong diagnosis when chances are good it would not have been terminal otherwise
Cancer misdiagnoses understandably cause huge amounts of unnecessary emotional and painful complications. Many symptoms of cancer are similar to symptoms of other conditions. For instance, endometriosis and ovarian cancer may present similarly.
If you visit a physician and are worse after being seen, act quickly to get proper treatment. If you do nothing, that could hurt a potential medical malpractice case. Legally, patients do not necessarily have to wait to get better just because a doctor told them to, nor are they required to follow doctors’ orders that seemingly make them worse. These actions can hurt your case and even make it seem as if you are making your illness worse and committing fraud.
To minimize the chances of misdiagnosis, ask questions if you fail to show improvement. Get second opinions or request that your doctor review your data and results again. It is also helpful to write notes, terms, and directions for things you may forget or do not understand. Some people have a companion join them at appointments to take notes or ask questions.
Listen to your gut. If something inside you is saying the doctor erred, take action. You may need to seek out specialists or ask for recommendations for a new doctor. Coping with misdiagnosis after medical malpractice can be confusing and scary, especially when you are also enduring a serious medical condition and treatments.
As the Society to Improve Diagnosis in Medicine explains, accurate diagnosis is not a high-enough priority across healthcare. Officials can improve diagnostic standards by giving doctors more training in engaging patients, healthcare professionals, and clinicians, performing more research to reduce the likelihood of harm, and overall prioritizing accurate diagnosis at all healthcare and policy levels.
In many cases, you can sue a doctor for misdiagnosis. It is possible you could sue other parties, too. For example, the nurses or specialists who reviewed your file could be involved in a misdiagnosis. If the doctor was a hospital employee, you might be able to sue the hospital.