Legal Remedies for Medical Misdiagnosis

Medical misdiagnosis is much more common than many doctors care to admit. These medical mistakes kill or seriously injure hundreds of thousands of Americans every year. Physicians have a fiduciary duty towards their patients. So, they have very little margin for error when they diagnose patients. Almost any misdiagnosis is negligence, or a lack of care. This medical mistake could be overlooking a condition the patient has or crying wolf and erroneously telling a patient s/he has a serious disease.

Both kinds of misdiagnosis often cause severe physical, mental, emotional, and other injuries. An Oceanside personal injury lawyer obtains compensation for all these losses. This compensation enables victims and families to pay immediate expenses related to the misdiagnosis and also face their tomorrows with added confidence. This outcome is the best possible outcome in these cases. No one can go back in time and change the past. So, an Oceanside personal injury attorney focuses on current and future needs.

Building a Case

In California, a negligence case, such as a medical malpractice case, has four basic elements. An Oceanside personal injury lawyer must prove each element of negligence by a preponderance of the evidence, or more likely than not.

• Duty: We mentioned fiduciary duty as well. A fiduciary must put aside all self-interest, such as obtaining work-life balance or making money, and only do what’s best for the legal client, medical patient, or other fiduciary. Doctors have such a high duty of care because, in most cases, patients entirely depend on them for all their healthcare needs.
• Breach: A poor outcome is not necessarily a breach of care. Usually, an expert doctor must testify as to the standard of care and the doctor’s violation of that standard. For example, if Sam sees the doctor with a possibly broken arm, the doctor must take an X-ray picture and properly interpret those test results. Doctors must make evidence-based diagnosis and other decisions. They cannot rely on their guts.
• Causation: A breach must substantially cause an injury. If a pre-existing condition contributed to the risk and/or severity of injury, full compensation is usually still available. Insurance companies cannot cash in at the expense of vulnerable victims. An attorney must also make a legal connection (foreseeability) between the breach and the injury. If Sam is in a car crash on his way to see a specialist, that injury isn’t foreseeable (possible) from his doctor’s perspective.
• Damage: Usually, the victim must sustain a physical injury to obtain compensation in a negligence case. This compensation includes money for non-physical injuries, as outlined above. In some cases, compensation is available for emotional injuries alone, under a theory like negligent infliction of emotional distress.

Additional punitive damages may be available as well, if an Oceanside personal injury lawyer proves, by clear and convincing evidence, that the tortfeasor (negligent actor) intentionally disregarded a known risk.

Your Claim for Misdiagnosis Damages

A few final words on two procedural requirements in California: the 90-day notice rule and the expert testimony requirement.

Victims must give providers at least 90 days notice before they file civil actions. This notice requirement gives the doctor or provider a chance to settle the claim quietly before it goes to court and becomes public record.

California’s expert witness evaluation standard is very unusual. Unlike most other states, California courts use the Kelly-Frye standard to determine expert testimony admissibility.

Under this standard, novel scientific methods must be generally accepted by the relevant scientific community. Additionally, the law focuses on the method’s reliability, as opposed to just acceptance. Because of this added complexity, only the most experienced attorneys should handle misdiagnosis cases.

Reach Out to a Savvy San Diego County Lawyer

Injury victims are entitled to substantial compensation. For a confidential consultation with an experienced personal injury lawyer in Oceanside, contact the Pursley Law Firm. The sooner you reach out to us, the sooner we start working for you.

Source:

statnews.com/2023/07/21/misdiagnoses-cost-the-u-s-800000-deaths-and-serious-disabilities-annually-study/