Can You Sue a Doctor for Misdiagnosis?

Your Rights After a Misdiagnosis | Henry Carus and Associates

We rely on doctors to assess our symptoms, perform the right tests, and provide accurate diagnosis of illnesses and injuries. Unfortunately, diagnostic errors are alarmingly common in public and private medical practices throughout Victoria.

Some conditions are difficult to diagnose, requiring extensive testing and specialist involvement. However, the Royal Australian College of General Practitioners reports that more than 80 percent of diagnostic errors could be prevented. This staggering number indicates the very real risk of misdiagnosis faced by patients.

The wrong diagnosis can lead to unnecessary treatments that are expensive, painful, and potentially life-altering. Alternatively, if doctors miss something serious and treatment is delayed, patients may suffer a decline in their health, a wide range of complications, and even die.

Misdiagnosis should always be taken seriously. If you or a loved one suffered harm as a result of diagnostic errors, you may be entitled to compensation through a medical negligence claim.

Can You Sue a Doctor for the Wrong Diagnosis?

Doctors may be held liable for diagnostic errors. However, not all cases of misdiagnosis are grounds for a medical negligence claim.

To recover compensation, you must prove that the doctor’s care fell below the standards of the medical profession. Potential examples of sub-standard care in claims involving diagnostic errors may include:

  • Failing to order the proper tests given the patient’s symptoms and complaints
    • E.g., Not ordering an electrocardiogram for a patient with chest pains
  • Errors in reading and interpreting test results
    • E.g., Misinterpreting the results of a biopsy, resulting in misdiagnosis
  • Failure to refer a patient to a specialist for further testing
    • E.g., Neglecting to refer a patient with irregular imaging and blood work potentially indicating cancer to an oncologist

Medical records and other evidence can support your claim against a doctor or other healthcare provider responsible for the misdiagnosis. Next, you must show that the negligence of the practitioner resulted in physical or psychological injury.

Proving causation in a medical negligence claim can be extremely difficult. The evidence must show that the doctor’s error is the probable cause of your injury and subsequent losses.

What Damages Can I Claim for Misdiagnosis?

Medical negligence claims in Victoria are governed by the Wrongs Act. Those who suffer injury due to negligent medical treatment can claim damages for both economic and non-economic damages (also known as special damages and general damages, respectively).

Economic damages include the costs associated with medical treatment, including hospitalisation, surgeries, medications, assistive devices and equipment, therapy and rehabilitation, etc., as well as the income you lose if the injury prevents you from working. Non-economic damages encompass pain and suffering, disability and disfigurement, the loss of future earnings, and the loss of enjoyment of life.

However, as with all common law personal injury claims, recovery of non-economic damages is limited to circumstances where the claimant suffers what is legally defined as a significant injury.

In misdiagnosis claims, issues such as “disease and aggravation” or “acceleration or recurrence of an injury or disease” may qualify as significant injuries. Specialised medical assessment must be performed to determine if an injury or illness meets the threshold for permanent impairment specified by law.

Defendants in medical negligence claims can dispute the Certificate of Assessment issued by an examining practitioner. If this occurs, the question is referred to a medical panel for a legally binding determination on the degree of impairment the claimant has sustained.

After a misdiagnosis, the prospect of seeing additional medical providers can be disconcerting. It is crucial to work with a knowledgeable legal team who can help you through the steps of your claim.

What Can I Do If a Doctor Misdiagnosed Me?

You have rights if you suffer injury due to misdiagnosis. First, it is in your best interest to contact a lawyer as soon as possible if you believe misdiagnosis has harmed you or a loved one.

Many patients are unaware of their right to compensation if they suffer losses due to medical negligence. The process of recovering damages is not easy, and you need experienced legal guidance and compassionate support to overcome the challenges in your claim.

Second, you may want to consider filing a complaint with the Health Complaints Commissioner (HCC). The HCC can offer assistance with the following:

  • Reviewing complaints lodged against registered healthcare providers in Victoria
  • Taking steps toward resolution and conciliation of complaints
    • Practitioners may agree to provide payment to wronged patients for potential losses as part of resolution and conciliation through HCC. Accepting the offered payment may affect your ability to recover additional damages through a medical negligence claim. It is important to consult a lawyer before reaching an agreement with the provider concerning payment.
  • Investigation of complaints involving complex issues

Investigations by the HCC are separate from legal proceedings. However, the organisation may issue orders barring the provider from performing some or all services. Such an order may prevent other patients and their families from suffering the way you and yours have.

Find Out If You Have a Claim Against Your Doctor

Specialised experience is not just an advantage in medical negligence claims – it is a necessity. Most lawyers lack the knowledge and the majority of law firms don’t have the resources to handle these claims effectively.

Henry Carus + Associates have successfully handled many medical negligence claims, achieving life-changing results on behalf of clients in mediation, settlement negotiations, and at trial.

Medical Negligence Practice Group Leader Michelle Dubrava has extensive experience representing those who have suffered harm due to misdiagnosis, delayed diagnosis, and other serious errors. She draws upon her years of experience defending doctors and hospitals to provide superior legal representation for patients who suffered injury due to the negligence of doctors and other medical professionals.

You Deserve More, and we are committed to achieving a favourable result on your behalf. Please call Henry Carus + Associates at 03 9001 1318 today for a free, no-obligation case review. Our medical negligence lawyers serve clients in Melbourne and throughout VIC.

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