Causation can be the most challenging element for plaintiffs to prove in a failure to diagnose cases. A plaintiff must prove that the misdiagnosis caused the injury to worsen more than it would have had a correct diagnosis been made. This means, for example, that a plaintiff will need to show that a delayed cancer diagnosis resulted in the patient's wrongful death, whereas the patient would have lived longer if it had been caught at the right time by the defendant.
Damages in a personal injury case, whether they be economic or non-economic, are generally limited to the coverage limits of the insurance policy. Often, this means that a person cannot sue an insurance company for a million dollars if the insurance coverage the defendant held only had a limit of $50,000. The most concrete way to think about this example is in the automobile insurance industry.
In the mid 1990s the concept of a ‘gratuitous care’ award was developed by the High Court.  Basically, if you can’t look after yourself or your house (or in some cases your children) because of your injuries, then you can claim the cost of a commercial carer or cleaner even though your family is doing the tasks you can’t do.  For a while this was a very lucrative area of damages but now there are laws that place both a threshold and a cap on what you can claim.  Put simply, you aren’t entitled to any gratuitous care award unless you need at least 6 hours of assistance per week for at least 6 continuous months and the hourly rate of any award is capped at the Average Weekly Earnings hourly rate.  You should be careful, however, not to confuse gratuitous care with commercial care, which is a different claim for damages entirely and which is not the subject of thresholds or caps.
Do you have skeletons in your closet? Were you less than truthful about your health and/or physical condition? Are you prepared to subject yourself to hours of questioning from attorneys, both yours and likely several others? Are you prepared to make financial disclosures that will become public? When you file a lawsuit, particularly a medical malpractice lawsuit, your life becomes a very open book -- nearly everything is fair game.
Whether the doctor lived up to the standard of care will likely require an expert opinion. One of the issues the expert will examine is the defendant doctor's differential diagnosis method. When trying to diagnose a patient, a doctor makes a list of diagnoses in order of probability and tests them by asking the patient questions, making further observations of the patient, or ordering tests. The goal is to rule out diagnoses until there is only one diagnosis remaining. However, in many instances, a doctor learns more information that requires him or her to supplement the list with other potential diagnoses.
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.
Your lawyer will decide whether or not to pursue your case against the hospital.  If the lawyer takes the case, he will then need to retain an expert medical doctor to submit an affidavit detailing how the treatment was below the standard of care, and how that departure from the standard of care led to an injury.   The case will then go through the pre suit process, which is a 90 day period during which the hospital investigates the claim.  At the conclusion of the presuit period the hospital can deny the claim, or accept responsibility.  Often times the parties will agree to mediate the case during the presuit period, and this often results in a settlement.  If the case does not settle during presuit, the lawyer will then file a complaint of medical negligence against the hospital. This is where the work really begins.
The patient must also prove that the doctor's negligent misdiagnosis or delayed diagnosis caused the patient's injury or condition to progress beyond where it normally would have -- had the correct diagnose been made in a timely manner -- and that this progression had a negative impact upon treatment. For example, because of a delayed cancer diagnosis the patient had to undergo a more severe treatment regimen (such as chemotherapy) or the patient died because the cancer had metastasized and no longer responded to treatment. Sometimes a patient can show harm even if the condition can still be treated. For example, with some cancers a delay in treatment increases the risk of recurrence.
We serve clients throughout North Carolina including those in the following localities: Mecklenburg County including Charlotte, Cornelius, Davidson, Huntersville, Matthews, Mint Hill, and Pineville; Iredell County including Mooresville and Statesville; Union County including Indian Trail and Monroe; Cabarrus County including Concord, Harrisburg, and Kannapolis; Gaston County including Belmont and Gastonia; and Stanly County including Albemarle.
8. Believe that the case is about retribution and punishment to the doctor and not about the cold calculation of money compensation for your losses. The College of Physicians and Surgeons is the watch dog over the conduct and medical standard of care of doctors in Ontario. Their process is ponderous but does not cost you anything. They get there sooner or later.
Unfortunately, just because one of these things occurs does not mean you have a claim. Medicine is not an exact science, and the law does not obligate doctors to be error-free 100 percent of the time. If doctor error occurs but there is no breach of a standard of care, you may not have a strong claim. If however, doctor error occurs and there is a breach of a standard of care, then malpractice may have occurred.
The patient must also prove that the doctor's negligent misdiagnosis or delayed diagnosis caused the patient's injury or condition to progress beyond where it normally would have -- had the correct diagnose been made in a timely manner -- and that this progression had a negative impact upon treatment. For example, because of a delayed cancer diagnosis the patient had to undergo a more severe treatment regimen (such as chemotherapy) or the patient died because the cancer had metastasized and no longer responded to treatment. Sometimes a patient can show harm even if the condition can still be treated. For example, with some cancers a delay in treatment increases the risk of recurrence.

For claims based on negligence, the cases might be barred in various states based on the presence or lack of physical injury. Some states don’t allow emotional distress claims particularly in cases where the suffering is a direct result of physical injury. Conversely, other states require the plaintiff to demonstrate or show evidence of the physical harm suffered or illness that has resulted from the emotional distress. And other states limit NIED claims strictly to emotional distress that is experienced directly or as a bystander within a region of physical danger.


When my father passed from MRSA acquired after open heart surgery (acquired either in the hospital or rehab center) I called 40 attorneys and was told the exact same thing as the article states: He was too old, had lost his viability (translate earning potential) and had no wife (she had died). Most of them would not tell me why they would not take the case, but one did. It's not only hard to hear that your elderly parent has no value legally, but this is exactly why doctors and hospitals and other medical facilities continue their poor attempts at keeping hospitals as clean as possible. They answer to no one.
For claims based on negligence, the cases might be barred in various states based on the presence or lack of physical injury. Some states don’t allow emotional distress claims particularly in cases where the suffering is a direct result of physical injury. Conversely, other states require the plaintiff to demonstrate or show evidence of the physical harm suffered or illness that has resulted from the emotional distress. And other states limit NIED claims strictly to emotional distress that is experienced directly or as a bystander within a region of physical danger.
But what do you think? I would love to hear from you! I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.
2. Lawyer - choose a lawyer you feel happy and comfortable with. Of equal importance to this, ensure the lawyer you choose is specialised in medical negligence law. 1stClaims will be able to help you find the perfect lawyer for you, so get in touch with us today. They will be able to give to the legal support you need. You can do this on behalf of a family member if they are unable to do this on their own.
In the mid 1990s the concept of a ‘gratuitous care’ award was developed by the High Court.  Basically, if you can’t look after yourself or your house (or in some cases your children) because of your injuries, then you can claim the cost of a commercial carer or cleaner even though your family is doing the tasks you can’t do.  For a while this was a very lucrative area of damages but now there are laws that place both a threshold and a cap on what you can claim.  Put simply, you aren’t entitled to any gratuitous care award unless you need at least 6 hours of assistance per week for at least 6 continuous months and the hourly rate of any award is capped at the Average Weekly Earnings hourly rate.  You should be careful, however, not to confuse gratuitous care with commercial care, which is a different claim for damages entirely and which is not the subject of thresholds or caps.
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There are many alternatives to litigation. Depending upon the jurisdiction you are in -- and whether there are caps on damages that may come into play in a formal trial -- you may wish to consider these options. Remember that in many cases alternative dispute resolution is simply part of the trial process and not the endgame. Your best first step might be discussing your options with an experienced medical malpractice attorney.

Some of the most commonly misdiagnosed diseases are heart attacks and blood clots, infections or tumors. Misdiagnosis can delay treatment and can even be fatal. Mistakes are shockingly common when medication is administered, and surgical mistakes happen way too often. Sometimes doctors operate on the wrong body part, or on the wrong person entirely! The same formula above can be useful in trying to calculate the value of your medical malpractice case.

While the majority of health care providers aim to exercise the highest standard of care for all patents, there are times when things can go gravely wrong. If you or a loved one has experienced poor medical care, misdiagnosis, lack of consent, or breach of doctor-patient confidentiality that has resulted in harm or injury, you may be entitled to medical malpractice recovery.
Before you sue your doctor for medical malpractice, take some time to consider whether you believe your case meets the threshold for a medical malpractice claim. Did your doctor breach the medical standard of care and did that breach cause you to suffer damages? Be honest with yourself. But for your doctor’s breach of the standard of care, would your injuries have occurred? If your answers are “yes” and “no” to those questions, your case may have a shot. If you can allege, with expert support, that your doctor breached the standard of care, and but for his breach your injuries would not have occurred, your case will likely not be immediately dismissed.
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