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Your Legal Rights in Medical Misdiagnosis Cases

What to do if you or loved ones have been injured by medical misdiagnosis

The legal definition of medical malpractice is simple: it is an action or non-action (commonly referred to as an “omission”) by a physician or medical worker which causes harm to you or loved ones. Simply put, if a doctor, nurse, or healthcare worker does something or doesn’t do something that causes your health to worsen, then malpractice has taken place. You and your family may be entitled to compensation for medical bills, pain and suffering, lost wages, and other damages.

The Journal of the American Medical Association reported that, in 2012, over hospitals and medical centers were forced to pay over $3 billion in malpractice payouts—an average of one payout every 43 minutes. Malpractice, in its various forms, was the third leading cause of death in the United States, following heart disease and cancer.

One of the most common types of malpractice is a missed or delayed diagnosis—commonly referred to as “medical misdiagnosis.” If a doctor gives a patient a mistaken diagnosis or the correct diagnosis is delayed for an unacceptably long period of time, this may cause irreparable and injurious harm to the patient. A medical misdiagnosis may result in the patient receiving medications or treatments which have no effect—or worse, harm the patient in some way. Precious opportunities to catch a disease early and treat it effectively may be lost if the diagnosis is delayed.

Medical Misdiagnosis: A History

According to CBS News, more than 12 million Americans are misdiagnosed every year. That’s one out of every 20 patients in the United States, and the researchers warn that half of all misdiagnoses are cancer misdiagnoses.

Studies have also shown that medical misdiagnosis in the United States is not uncommon, especially misdiagnoses involving cancer. While these often cause no direct physical harm to the patient, a cancer scare might lose individuals thousands of dollars in medical bills (for clinical tests, chemotherapy, and other treatments and examinations) and lost wages. The best way to keep yourself safe from a cancer misdiagnosis is to get a second opinion from an expert pathologist or oncologist.

Liability in Medical Misdiagnosis Cases

Medical malpractice is a type of personal injury. Proving liability in a personal injury case can be complex and tricky, but generally speaking, you must prove that the at-fault party was negligent or incompetent while discharging their duties, and that negligence or incompetence harmed you.

Remember, the key here is the word negligence. Your doctor was negligent in his or her examination of you or the interpretation of test results, leading to a misdiagnosis. To fully prove that negligence took place in front of a jury, your medical misdiagnosis attorney must prove:

  • That the medical worker in question owed you a duty (in this case, that you had a doctor/patient relationship with the negligent party);
  • The medical worker deviated from the “standard of care” in diagnosing your condition;
  • Failing to adhere to the standard of care caused you physical harm, or caused your condition to worsen, or inconvenienced you in some way (for example, forcing you to undergo costly medical procedures or miss many days at work).

In order to prove that your doctor misdiagnosed you, you must prove that he or she failed to live up to the aforementioned “standard of care.” Usually, this is done by using the testimony of another medical expert—a second opinion, as it were. The testimony of a reputable physician—whose area of expertise is the same as your doctor—establishes the standard of care. The burden of proof is on the plaintiff’s attorney to demonstrate, using this expert testimony, that your doctor failed to live up to this standard of care in diagnosing your condition.

If you or a loved one has been injured by a medical misdiagnosis, ask yourself: would a reasonably talented, aware, or competent physician have made the same mistake under identical circumstances? If the answer is “no,” then you may have grounds for a medical malpractice suit.

What to Do if You or Loved Ones Have Been Hurt by Medical Misdiagnosis

The first and most obvious thing for a malpractice victim to do is to hire a lawyer. A competent medical misdiagnosis attorney will be able to help you wade through the shifting sands of personal injury and medical law. Hospitals and medical centers have the money to hire a legal team and won’t be eager to shell out compensation for malpractice-related injuries or bills. A competent legal team can aggressively represent you and get you the compensation you deserve if your doctors or nurses were negligent in their duties. Contact the law firm of Estey Bomberger at 1.800.925.0723 or go to