Misdiagnosis: Getting Compensation and How a Lawyer Can Help

October 12, 2021 | Medical Malpractice

If you received a misdiagnosis for a serious condition, you could seek compensation with the help of a medical malpractice lawyer. You could also seek damages on behalf of an injured or late loved one.

Every medical malpractice lawyer has one goal: to recover damages for claimants’ losses. Damages in your case could comprise the cost of treatment, rehabilitation, and other related expenses.

Before you decide on your legal options, consider how a lawyer can help you get compensation and how they can help.

What constitutes a medical malpractice case based on a misdiagnosis?

BMJ Quality & Safety does a great job of explaining misdiagnosis. Essentially, when a medical practitioner fails to diagnose a condition, this could have adverse health effects for the patient. The provider might even recognize a certain ailment but diagnose it as something else.

Some conditions progress slowly, and despite a misdiagnosis, a patient can make a full recovery. Other cases, however, require prompt action, like in the case of sepsis or advanced cancer.

Yet, going up against a medical provider and their insurance company can be complicated –– especially while recovering from a misdiagnosis. A medical malpractice lawyer can prove your case, estimate your losses, and seek compensation that addresses your condition.

How can you get compensation after a misdiagnosis?

In general, you have two options when seeking damages in a medical malpractice case. Because of the complexities involved in these matters, many claimants opt to work with lawyers. If you partner with a medical malpractice team, they can determine which of the following options suit your situation:

You could file a medical malpractice claim

Many medical malpractice cases start with this option. Here, you would notify the at-fault party’s insurer about your situation and submit a demand letter.

This document would outline:

  • The details of your condition, including the misdiagnosis itself
  • The losses you suffered as a result
  • The types and amount of damages you seek
  • Your intention to file a lawsuit if a settlement is not possible

After sending your demand letter, the liable party may return with an offer or deny your case altogether. At this point, your lawyer can enter negotiations with them. If unfruitful, your lawyer can file your case in civil court according to your state’s applicable statute of limitations.

You could resolve your case through mediation

In mediation, you sit down with the at-fault party and their representatives. Then, in a conversation facilitated by a neutral third party, you can discuss an out-of-court agreement that could benefit both you and the other party.

For instance, the negligent party could offer you a structured settlement, where you receive payment over a certain time. You could also agree to other terms that satisfy your case’s needs. This option is not the same as going to court.

You could file a medical malpractice lawsuit

You could also pursue damages through a lawsuit. Here, a personal injury lawyer would present your case to a judge and jury, who would then decide whether you deserve damages. Going to court is not an ideal outcome for a lot of people. However, with legal aid on your side, you can focus on your personal life while your lawyer advocates for your rights.

Sometimes, after the lawyer files a claimant’s lawsuit, the liable insurer agrees to offer a fair settlement.

What types of damages can you pursue following a misdiagnosis?

Generally, you can seek the cost of your reasonable healthcare expenses. The types and values of these losses depend on your health condition, quality of life, and age. However, you could seek other damages related to your situation, such as:

Harm to your earning power and ability

We seek medical attention so we can get back on our feet and return to the workforce. A misdiagnosis can derail your career and plans for the future.

Compensation in your case could account for lost:

  • Tips
  • Commissions
  • Employee benefits, like health insurance
  • Paid time off (PTO) and vacation days
  • Bonuses
  • Wages
  • Income
  • Freelance contracts

Your attorney will also account for the loss of your future earning ability in your claim.

Pain and suffering

Many aspects of your case don’t come with price tags yet still have value. Pain and suffering is one of those expenses. This damage pays for your physical pain and emotional turmoil.

Your attorney will calculate your pain and suffering based on your:

  • Health condition
  • Overall situation
  • Economic damages
  • Quality of life
  • Mobility
  • Prognosis and diagnosis
  • Life expectancy

Depending on which state you file your case, there may be caps on the damages you may claim for pain and suffering in medical malpractice claims. The state limits on pain and suffering vary and may also depend on the extent of the medical error.

Disability

Pursuing the cost of disability differs from the program offered by the Social Security Administration (SSA). Instead, this damage pays for changes to your mobility, cognitive processes, and ability to live independently.

“Medical Error“ suggests that medical errors are the sixth-leading cause of death in the United States. Johns Hopkins Medicine conducted a study and suggested that medical errors were actually the third-leading cause of death. You are not alone if you lost a loved one to a misdiagnosis.

Depending on your relationship, you could seek these and other losses:

  • Loss of consortium
  • Loss of parental guidance and household services
  • End-of-life medical expenses, including hospice
  • Funeral expenses and burial costs

Your medical malpractice team can help you

Below is a rough outline of how your law firm can advance your case:

To have a valid medical malpractice case, you must first obtain a Certificate of Merit from another healthcare provider.

This document must show:

  • You suffer (or suffered) from a health condition.
  • Another healthcare provider in the same situation would have correctly identified your condition.
  • You have the basis of a medical malpractice claim or lawsuit.

In most states, you have an extremely short timeframe for obtaining this piece of evidence. Generally, you have anywhere from 30 to 90 days from the date of filing your claim to get this certificate. Your lawyer can use their network of resources to find a doctor to attest to your condition. They can also ensure that your Certificate of Merit compiles with all state-mandated details.

Your lawyer can gather supplemental information to support your medical malpractice case.

They could make use of the following:

  • Your medical records. These documents can show that you had a health condition and you received a misdiagnosis. These records could also give insight into the nature of your condition and its impact on your quality of life.
  • Testimony from healthcare consultants. Your lawyer can confer with doctors to determine the effect of the misdiagnosis and what could have properly addressed your situation. Your lawyer will consult with doctors in the appropriate fields. For instance, if your first doctor failed to diagnose a traumatic brain injury, your lawyer may talk to another neurologist about your ailment.
  • Your damages’ receipts. A misdiagnosis doesn’t just affect your health; it can also affect your finances. Your lawyer will use your medical bills, receipts, and invoices to calculate the cost of your past and future medical care. They will also evaluate your employment records to determine the harm to your income and future earning capacity.

Your legal team will gather other evidence to support your right to damages. They may use your testimony to bolster your claim.

The at-fault party may not necessarily be your doctor.

Instead, the fault could rest with another party, such as:

  • A lab technician who did not properly evaluate test results.
  • A hospital that did not maintain up-to-date equipment.
  • A third-party company that partnered with your doctor or hospital.
  • A medical equipment manufacturer, if its product yielded unreliable results.

Your lawyer could find that multiple parties failed in their duty of care to keep you safe and healthy. In this instance, they could file multiple claims to seek damages.

Depending on where you live, the at-fault party in your case could have medical malpractice insurance. If so, your lawyer can file a claim with that insurer and pursue damages up to the liability policy’s limits. However, some states do not require medical professionals to have insurance. In this case, your attorney can decide what course of action meets your case’s requirements.

Most lawyers will strive to resolve all cases out of court. However, if an insurance claim does not yield fair compensation, you and your lawyer could file a lawsuit. Be aware that every state has a deadline to file a medical malpractice lawsuit. This deadline, known as a statute of limitations, varies in length from state to state but is typically measured in years.

Also, these timelines could be longer or shorter, depending on your situation. The deadline in your case usually begins on the day you received a misdiagnosis. However, it could also rely on when you discovered the misdiagnosis.

Your legal team will do everything possible to complete your case. From negotiating with insurance adjusters to arguing your case at trial, they will dedicate themselves to your claim’s success.

Questions and answers about medical malpractice cases

Medical malpractice cases are some of the most complicated situations. Understandably, you might have many questions right now. Consider the following section and how these answers could address your legal concerns:

Will the negligent party in my case go to jail?

The law acknowledges that even the most skilled medical providers are not perfect. If your medical error was an honest mistake, the courts could order the at-fault party to pay for your losses. However, if your medical error resulted from criminal misconduct, the other party could face criminal charges in addition to your civil case.

How long could it take to win your case?

Medical malpractice cases can take time to settle. It all depends on the availability of your case’s evidence, the other party’s cooperation, and your physical health.

Do all medical malpractice cases deal with misdiagnoses?

Medical malpractice cases cover a wide variety of medical errors, including:

  • Failing to render appropriate treatment
  • Committing errors during surgery
  • Prescribing the wrong medication
  • Failing to order necessary medical tests
  • Mishandling an infant following childbirth
  • Failing to consider a patient’s pre-existing conditions before rendering care

Medical Principles and Practice reports that medication errors are the most common type of medical malpractice.

Do all medical malpractice cases require lawsuits?

No. In fact, most injury cases never see the inside of a courtroom. Most successful cases end with insurance settlements. However, your lawyer will not hesitate to litigate your case if doing so could yield compensation.

What conditions do some doctors misdiagnose?

Some conditions require several rounds of testing to reach an affirmative diagnosis. Others simply share symptoms with other conditions.

According to the American Association of Retired Persons (AARP), some commonly misdiagnosed conditions include:

  • Lupus
  • Lyme disease
  • Fibromyalgia
  • Celiac disease
  • Multiple sclerosis
  • Chronic fatigue syndrome

Even though some conditions are harder to diagnose than others, that is no excuse for a misdiagnosis. If your doctor had a hard time identifying an ailment, they should have referred you to a specialist rather than allowing your condition to worsen.

How much is my medical malpractice case worth?

The value of your case depends on your circumstances. An insurer doesn’t get a medical malpractice claim and assigns a dollar amount to each one.

It considers your overall circumstances, including:

  • Your prognosis and life expectancy
  • Your profession
  • Your quality of life
  • Your relationships with your loved ones
  • The cost of your overall losses, such as your medical bills
  • The degree of the error

Your lawyer may consider other aspects of your situation when estimating the total value of your case.

Chris Dixon & Greg Motil

Connect with a St Louis medical malpractice lawyer to learn more

Most medical malpractice law firms offer free case reviews to claimants. They can review your case, let you know your legal options, and help determine a fair value for your compensation.

The Dixon Injury Firm
9666 Olive Blvd #202,
St. Louis, MO 63132
Phone:(314) 208-2808