Errors related to diagnosis were the leading cause of malpractice claims that result in death or disability. The majority of these errors occur with outpatients, but those which occurred while the victim was hospitalized were the most likely to result in death.
Proof is Difficult
Unfortunately, it can be difficult to prove malpractice through misdiagnosis, since doctors are not culpable under the law for all diagnostic errors. Patients have to prove three things in order to get a settlement for lack of diagnosis, or misdiagnosis.
- There must have been an actual doctor-patient relationship
- The doctor actually failed to provide skilled and competent treatment. In other words, there was negligence and incompetence involved.
- The cause of the injury to the patient was directly related to the negligence or incompetence.
Mistakes vs. Malpractice
The majority of malpractice payments focus less on the first point and more on the second two. However, a misdiagnosis or failed diagnosis is not unto itself enough to bring a malpractice suit. Even the best doctors in the world are only human and sometimes make mistakes; this does not necessarily mark them as incompetent. Doctors use a system called differential diagnosis to identify a patient's condition. After the initial examination, the doctor makes a list of possible issues, in order of how probable the diagnoses are. After further examination, questioning the patient, and looking more in depth at symptoms, one by one the doctor narrows down the list of symptoms.
The patient bringing a malpractice suit must prove that another doctor in the same field would not have made the same misdiagnosis. The proof required includes making it clear that the doctor did not include the correct diagnosis as a possibility when other doctors would have, or that the doctor failed to perform the necessary and obvious tests to verify the diagnosis.
Finally, there must be proof that the doctor's negligence was the direct cause of injury. The argument is that if the correct diagnosis had been made, no further injury would have been sustained, or at least, that the further injury would've been far less severe.
The best way to protect yourself in the face of a malpractice lawsuit is to realize that as a patient, you are not powerless. As the patient, you are within your rights to follow up and ask the doctor to examine other options. If you have a splitting headache unlike anything you've ever had and the doctor tells you to just take a few aspirin and lay in a dark room, you are not out of line to ask if this could be something more serious, and request that your doctor follow up with other options, and demand an answer if the doctor says no.
At the very least, if you make these requests, you have more of a backup if and when the time comes for a malpractice suit.