Doctor Misdiagnosed a Patient – Is That Grounds for a Medical Malpractice claim?

According to a Johns Hopkins Study, an estimated 80,000 to 160,000 Americans suffer significant permanent injury or death because of medical diagnostic errors every year. If the misdiagnosis involves a serious disease or condition that requires immediate treatment, early detection, or prompt action -- such as a heart attack, stroke, cancer, or other potentially deadly disease -- it is a common ground for medical malpractice lawsuits.  In the period from 1986 to 2010, 35.2% of all the medical malpractice payouts in America resulted from a medical misdiagnosis lawsuit.

The amount actually paid out on medical malpractice claims is an extremely tiny portion of the cost of medicine and hospitalization in the United States. Studies range from one-half of 1% to 3% of money goes to paying for malpractice caused by preventable errors.

In Pennsylvania we know from the Patient Safety Authority that there are approximately a third of a million serious events and incidents reported a year. That is under-reporting. Yet in the same year, there were approximately 1,400 lawsuits filed in the Commonwealth. Therefore, very few cases of inappropriate care actually wind up leading to a medical liability claim.

It is also important to get a local medical malpractice attorney who knows the territory. In Pennsylvania, a Rule of Court requires medical malpractice claims be brought in the county where the negligence actually occurred.  Many people erroneously believe that they should get a lawyer from one of the big cities.  Those lawyers often do not understand the local procedures, rules; they just want to make a quick buck and get out. 

Do You Have Grounds for a Lawsuit?

While lawsuits are common, not every misdiagnosis is grounds for a lawsuit, especially when the condition involved is complicated and difficult to treat and diagnose. Doctors have a duty to diagnose and treat medical conditions according to a national standard of care.  If these standards are not met due to negligence based upon incompetence or other factors and this led to a wrong diagnosis causing harm, you may be entitled to compensation through the legal system.

To win a lawsuit or to obtain a good settlement, you and your attorney must show that the duty of care was breached because of the negligent actions or omissions of the medical professionals or facility, and that this breach caused an injury or wrongful death. In Pennsylvania claims may also be brought based upon vicarious liability meaning that the doctor or professional was employed by an institution or because it’s the corporation’s own negligence. You must be able to demonstrate that:

• You have been injured.
• The injury is the result of a wrong diagnosis.
• The doctor acted unreasonably or negligently when making that diagnosis, and this violated the standard of care.
• The violation led to avoidable harm which caused your injury.
• In the alternative, it needs to be proven that the negligent care increased the risk of harm to the patient.
• In some cases a lack of informed consent can lead to a claim.

Violation of the standard of care involves knowing what the standard of care is for the doctor’s subspecialty, showing what actions the doctor took or failed to take, and then determining whether these actions or omissions violated the standard of care for that profession.

The question is, what would a reasonable doctor in the same or related subspecialty have done under the same circumstances? Misdiagnosis may not always be unreasonable. There may be misdiagnosis because symptoms are the same for a very similar condition. However, doctors are supposed to create a checklist of possibilities to make sure that they check out those possibilities. In determining whether the standard of care was violated typically requires the testimony of expert witnesses in the fields involved. This is not always the case and of course the facts are very important. Sometimes the treating physician may act as an expert.

Proving whether the violation led to avoidable harm involves determining whether the misdiagnosis caused you actual harm and whether the harm could have been avoided.

Examples of harm include:

• a shortened life expectancy
• emotional trauma where the proper evidence is supportive
• expenses and pain they are suffering
• unnecessary worsening of the medical condition
• scarring and disfigurement from unnecessary surgery
• death from the treatment or lack of treatment.

Pennsylvania Medical Malpractice Laws

Pennsylvania has some specific laws you need to be aware of if considering filing a lawsuit.

1. Statute of Limitations -- There is a statute of limitations requiring the filing of lawsuits within two years from the date the action accrued. This is generally the date when the malpractice occurred.  The statute of limitations may be tolled (put off) when the patient could not have known through the exercise of reasonable diligence the relationship between the care afforded and the harm suffered.  Pennsylvania also has a statute of repose of seven years from the date of the injury, except when foreign objects are left in the body. The entire area of statute of limitations when they apply and how they apply is extremely complex. There may be additional time allowed for medical injuries involving children and sexual abuse. 
2. Certificate of Merit -- You or your attorney must file a signed "certificate of merit" stating that an "appropriate licensed professional" believes there is a "reasonable probability" that the defendant health care provider's conduct "fell outside acceptable professional standards" and caused the plaintiff's claimed harm. This certificate must be filed with the initial complaint, or within 60 days of filing.  Under certain circumstances extensions can be granted. 
3. Medical Malpractice Damages Cap -- There is no cap on economic or non-economic damages in Pennsylvania, so an injured patient may recover for all financial losses caused by the malpractice. Compensation will depend on the specific types of harm you suffered and can include:

• Compensatory damages for things like medical expenses and lost wages, lost future wages, medical, hospital and rehabilitation expenses.
• Non-economic damages for “intangibles” like loss of life’s pleasures until death , pain, suffering, disfigurement permanent disability, blindness, loss of a limb, paralysis, trauma.
• Punitive damages to punish medical professionals who have acted recklessly or intended to harm patients. These are rarely awarded and are capped at twice the compensatory damages.

Proving medical malpractice can be difficult, and not every misdiagnosis is medical negligence, so anyone injured should seek the help of an experienced and qualified medical misdiagnosis lawyer. 

Cliff Rieders helped to write Pennsylvania’s Financial Responsibility Law, which governs automobile insurance issues in Pennsylvania. Cliff Rieders has written the book on the subject of the Financial Responsibility Law entitled, Financial Responsibility Law Issues in Pennsylvania.