Can You Sue A Doctor For A Misdiagnosis?
When you hear the term “medical malpractice,” it may conjure up images of a sponge left inside a patient after surgery or performance of a medical procedure on the wrong limb – or the wrong person.
While these horrific incidents do occur, there are other medical errors that can be just as devastating for the patient.
Misdiagnosis is one mistake that can have profound implications for your health, and they’re more common than you may think.
In a study of patients who went to the Mayo Client for a second medical opinion, researchers found some shocking trends:
- More than 20 percent of patients were misdiagnosed before arriving at the Mayo Clinic;
- Only 12 percent of patients were properly diagnosed by a primary care doctor; and,
- Around two-thirds of patients required some change to their diagnosis before physicians could provide treatment.
Though these statistics may be disturbing, they raise an important question if you or a loved one received an improper diagnosis of a medical condition: Can you sue a doctor for misdiagnosis?
A New Jersey medical malpractice lawyer can provide a more thorough answer after reviewing the details of your case, but some general information may be helpful.
Misdiagnosis as Grounds for Malpractice
At its core, misdiagnosis is a medical error, so your rights as a patient are based upon medical malpractice liability. Generally, you must show:
A Deviation from the Standard of Care
When offering a diagnosis, your physician departed from the applicable medical standard of care that applies to health care providers.
The key is the level of care that a hypothetical physician would have provided in diagnosing your condition. This analysis presumes that the hypothetical doctor had the same background or training as your own, and was faced with the same set of underlying circumstances.
Remember, the standard of care does not require that doctors be perfect.
They also do not have to be mind readers. If you were suffering from symptoms but didn’t tell your doctor, then it might be unrealistic for a doctor to correctly diagnose you. Write down, as best you can, what you told the doctor during your visit.
Harm Resulting from the Misdiagnosis
For this element, you must show a direct link between the failed diagnosis and the injuries you sustain as a result. Examples include:
- Unnecessary, harmful courses of treatment for a condition that you don’t have;
- Delays in embarking on a course of treatment that would have provided proper care for your condition; and,
- More aggressive or painful treatment, as a result of not diagnosing a condition early.
If you’re able to prove these facts, you can sue a doctor for misdiagnosis. However, while they may seem straightforward, there are many challenges in getting the compensation you deserve in a misdiagnosis case.
How Do You Know if You Have Suffered a Misdiagnosis?
Doctors do not like to admit errors, and few will call you up to admit, “Yep, I missed that diagnosis!” Instead, you might have no idea that you have suffered a misdiagnosis until you meet with a different doctor who quickly and accurately diagnoses what is wrong with you.
If you quickly receive a different second opinion, then the first doctor you met with might have been negligent. You should meet with an attorney to review the circumstances of your case.
Special Considerations in a Medical Misdiagnosis Claim
Even when your rights are clear in a misdiagnosis case, you should be aware of various legal factors that apply a New Jersey medical malpractice case. They include:
Statute of Limitations
Like all US states, New Jersey has a statute of limitations that applies to personal injury cases, including claims based upon medical malpractice.
The law requires you to file a lawsuit in court within two years after the cause of action arises, which typically refers to the date that the misdiagnosis occurred. If you don’t initiate litigation within this timeframe, you’re forever barred from recovering compensation.
However, many patients won’t know that they’ve suffered harm until long after the physician made an error in diagnosing them. For this reason, New Jersey law allows an extension of the statute of limitations. You may have an additional two years to file a lawsuit, starting from the date on which you discovered you were harmed by a diagnosis error.
The Affidavit of Merit
In most personal injury cases, you initiate litigation by filing a Complaint that states the facts of your case and your request for monetary damages.
Medical malpractice cases proceed differently, because you’re responsible for submitting an “Affidavit of Merit” within 60 days after the defendant responds to your Complaint.
Though the legal requirements are complicated, you essentially need a licensed physician to swear under oath that you most likely have a case for medical malpractice.
This hurdle is designed to knock out cases that are fraudulent or that are supported by only weak evidence. By working with an attorney, you can find an appropriate expert to sign an affidavit.
Statutory Cap on Damages
Injured patients can receive compensation to cover any additional medical care they need because of the misdiagnosis, as well as lost wages. Many patients in New Jersey also qualify for pain and suffering compensation, which can make up for the mental and physical anguish they experience.
Unlike other states, New Jersey doesn’t place a cap on how much you can recover for economic and non-economic damages in a medical malpractice case. You can recover for your medical treatment, lost wages, pain, suffering, emotional distress, and many other types of losses.
Schedule a Free Consultation with Our New Jersey Medical Malpractice Attorneys Today
This overview on whether you can sue a doctor for misdiagnosis may be useful, but it doesn’t provide a complete picture for your specific circumstances. To learn more about your rights and remedies as the victim of an improper diagnosis, please contact O’Connor, Parsons, Lane & Noble.
You can set up a no-cost case assessment at any of our five New Jersey locations calling toll-free at 1-800-586-5817.