When we visit a GP, hospital or other type of medical establishment, we entrust our health, wellbeing and lives into the hands of doctors.
Thankfully, more often than not, these medical professionals fulfil their duty of care to us, their patients, and our health and lives are greatly improved by of their actions.
Sometimes, however, a patient’s health can deteriorate. Complications may arise, despite being in a place surrounded by healthcare professionals, medical equipment and access to many types of treatment or medication.
In some instances, this situation may be completely out of the health professional’s control, especially if complicated medical conditions take an unforeseeable and unfortunate turn for the worse.
However, there may be other circumstances whereby this decline in health is the direct result of an incorrect, missed, or late diagnosis.
In such a case, the afflicted patient may have the right to file a medical negligence claim on the grounds of a medical misdiagnosis.
Medical Misdiagnosis Claims – The Facts
Thankfully, the statistics on NHS clinical misdiagnosis are not too alarming. According to NHS Resolution, only a tiny proportion of the millions of patients who pass through NHS medical facilities in the UK have cause to file a misdiagnosis claim.
They report there were 2315 misdiagnosis claims made for the notification year 2018/2019. These figures include claims for both wrong and late diagnoses, as well as the failure to diagnose a condition that later caused harm.
It may be worth noting, however, that these types of claims are sadly on an upward trend. The average number of misdiagnosis claims for the previous four years was 2100-2200 per annum.
Remember too, these medical misdiagnosis statistics do not include claims made against private healthcare professionals/facilities, so the true scope of such problems is likely to be much higher.
Whilst these figures are relatively low compared to the total number of patients diagnosed each year, the bottom line is that a medical misdiagnosis is something that still occurs and, for those affected, it can be an extremely serious and distressing matter.
For this reason, it is worthwhile to know the legal recourse you can take should you fall victim to this type of clinical negligence.
In this guide, we’ll answer some of the most common questions about misdiagnosis claims and help give you an overview of what to expect if you have a valid claim.
What Is Medical Misdiagnosis?
If you look it up in the dictionary, the term ‘misdiagnosis’ is defined as an incorrect diagnosis of an illness or other health problem. Legally speaking, though, the term ‘medical misdiagnosis’ is much broader than its simple definition.
This term can be used when a health provider or medical professional delivers an inappropriate or below standard method of care, improperly executes a plan of care or fails to provide the right treatment.
Consequently, keeping up with the legal determination, misdiagnosis claims are broadly grouped into three categories as listed below.
1) Incorrect Diagnosis
In this situation, a medical practitioner examines a patient and then deems an illness, medical condition or injury to be something that it is not.
The doctor may then proceed to offer the wrong treatment, resulting in otherwise avoidable complications or the patient’s true condition getting worse. In the most serious of cases, this could lead to a shortened lifespan or result in life-changing consequences.
Occasionally an incorrect diagnosis made by a doctor may be the direct result of receiving inaccurate results of blood tests, radiology film or other medically related tests. Thus, leading him or her to prescribe the wrong course of treatment based on the false results.
In such circumstances, the misdiagnosis claim should then be filed against the person liable for the error in the diagnostic procedure (e.g. a pathologist, lab technician, etc.) and not the doctor who administered the treatment based on the erroneous results.
2) Delayed Diagnosis
Here, a doctor makes the correct and proper diagnosis, but much later than is reasonably expected from a medical professional of their calibre. The avoidable delay may then result in a worsening of the health condition or a longer than usual recovery period.
In some circumstances, the late diagnosis can significantly alter the outcome for the patient, as many treatments are time-sensitive. These delays may result in longer treatment, more invasive treatments and, in the worse scenario, it can even be the difference between life and death.
For example, a delayed cancer diagnosis may mean a greatly reduced chance of survival, as the cancerous cells could have spread to surrounding areas by the time a patient gets the proper diagnosis.
3) Missed Diagnosis
In this situation, a doctor fails to make a diagnosis altogether and, as such, offers no treatment. Such an error could result in the condition worsening or, in the most serious of cases, the patient could suffer life changing consequences or lead to an early avoidable death by not receiving the available life-saving treatment in time.
Can You File A Medical Misdiagnosis Claim For Someone Else?
Sometimes a victim of a clinical misdiagnosis can be left physically/mentally incapacitated, in a coma or even dead.
In such situations, the law allows family members or spouses to file a misdiagnosis claim on behalf of the affected patient. Parents are also entitled to make misdiagnosis claims on behalf of children under the age of 18.
What Are Your Medical Rights?
If you are considering filing a misdiagnosis claim, you should understand what your legal rights are beforehand.
The NHS has a written constitution that sets out medically related laws for everything from the health service’s core principles, to how patients should be treated and even how patients should deal with grievances.
It includes a series of fundamental standards, below which standards of care should never fall. As far as the issue of misdiagnosis is concerned, your rights are as follows.
Keep in mind that these rights remain the same, whether you are seeking health services from an NHS medical facility or a privately owned hospital/clinic.
1 Right To A Professional Standard Of Care
All healthcare providers (surgeons, GPs, dentists, etc.) are bound by law to provide their patients with a duty of care. As per the NHS constitution, you are legally owed quality healthcare services in any NHS medical facility that you visit.
Private practitioners and clinics will also be bound to adhere to specific laws regarding standards and duty of care law, so patients across the whole healthcare spectrum are protected.
2 Right To Secure Compensation Pending Breach Of Healthcare Duty
If your doctor, or other healthcare professional, fails to meet the level of professional care put forth by the law, you have the right to be compensated. This includes claims for medical misdiagnosis and medical negligence.
These claims are usually reviewed using the ‘Bolam’ test, which seeks to find out whether the treatment provided fell below the standard of care expected of a health provider/doctor’s capacity.
3 Three Year Limit To File A Compensation Claim
Another law-related point to note is that there is a limited amount of time in which you can make a medical misdiagnosis claim. Adults typically have a limit of 3 years from the ‘date of knowledge’ with which to formally complain to a court.
The timeline may begin right after the misdiagnosis happened or when the effects of the misdiagnosis started to show. If the patient passed away directly due to the wrong/late or lack of diagnosis, the statute of limitations with which to file a claim is three years after the date of death.
For children, the time limit is more generous, as the 3-year limit starts counting down from the date they turn eighteen.
Similarly, patients who suffer a brain injury following a misdiagnosis, have the 3-year countdown starting from the time they regain full mental capacity. If the brain injury is severe and the patient cannot personally file the claim, then there is no time limit for filing the misdiagnosis lawsuit.
What Kinds Of Compensation Can You File For In a Medical Misdiagnosis Claims?
Misdiagnosis claims are a lot like other types of medical negligence claims, or personal injury claims for that matter. If successful, you are entitled to receive two different categories of compensation. These are called General damages and Special damages.
General damages aim to compensate for any adverse physical or health-related effects experienced due to the misdiagnosis, such as:
- Resultant pain and suffering
- Any disability or long-term prognosis
- Effect on quality of life (amenity is the legal term)
Any psychological damage – this could be common in cases of incorrect diagnosis. A patient may suffer emotional and mental distress from being told they are suffering from a severe or terminal condition when, in fact, they are not. This may also apply if a delayed or missed diagnosis subsequently alters the type or success of a treatment plan.
Special damages, on the other hand, looks at all the financial expenses incurred as a direct result of the misdiagnosis, such as:
- Cost of treatment – this covers travel expenses, as well as the cost of any medications, equipment, or care needed
- Loss of earnings
- Loss of future earnings – if applicable
- Cost of adapting the home, car or lifestyle – if the misdiagnosis causes a significant change in the victim’s physical or mental well-being and leads to a disability
What Evidence Do I Need For A Medical Misdiagnosis Claim?
In a misdiagnosis claim, you must prove three things:
- Firstly, that the health provider you are suing owed you the legally stipulated duty of care stemming from your patient-doctor relationship.
- Secondly, that the doctor breached this legal duty of care, and as such, the treatment you received fell below the usual medical standards or was not what is reasonably expected.
- Thirdly, that the error in treatment caused you harm (i.e. deterioration of health condition, pain, injury, or other medical-related complications) and was foreseeable and reasonably avoidable.
If you wish to proceed and intend to bring a valid misdiagnosis claim before a court or the NHS Litigation Authority (NHS LA), you will require a few things which include:
1) Evaluation By An Independent Qualified Practitioner
A doctor facing a misdiagnosis claim may argue that they followed a systematic differential diagnosis process and, as such, any ill effects suffered were merely unfortunate.
To evaluate and challenge this, you must obtain an independent expert medical opinion on your diagnosis/treatment etc, along with documented comments on every step of the level of care they would have provided as a qualified health practitioner.
If the independent practitioner reviewing your case happens to state that your original doctor acted reasonably and that they would have done the same thing in the same circumstances, then sadly that is likely as far as your case will go. Without the testimony of a professional health provider backing up your misdiagnosis claim, it will be near impossible to win a lawsuit.
2) All Records Of Your Treatment
To show that your doctor acted incompetently with regards to your diagnosis or treatment, you will need all records of your treatment.
These documents are also needed to prove the existence of a doctor-patient relationship, as well as the fact that your doctor’s actions are what led to the avoidable consequences that you are seeking compensation for.
You may want to begin the process by contacting a claims advisor or hiring a solicitor who specialises in medical misdiagnosis cases. From obtaining your medical records, to helping get you a case-building expert testimony from another healthcare professional, your solicitor will be able to handle all the legal matters.
3) Formal Letter Of Claim To Defendant
Before you can bring your misdiagnosis claim before the NHS LA or a court, the health professional you are filing the lawsuit against should first be notified. That means you must serve the would-be defendant with a ‘notice of misdiagnosis claim’.
By law, the defendant has four months to provide a formal reply to the notice. If negligence on the part of the doctor is pretty apparent, the response can be an admittance of liability, in which case your lawyer can begin negotiations on an out-of-court settlement. A large number of medical misdiagnosis claims are settled out of court in this way, which is why this step is so essential.
On the other hand, the defendant can also respond by denying any culpability. If this happens, or an agreed-upon settlement is not reached, your solicitor will then proceed to bring the matter to court.
How Much Compensation Can You Get From A Medical Misdiagnosis Claim?
Given that a medical misdiagnosis can have catastrophic or even fatal results, the compensation awarded for these claims can be substantial.
However, this does not mean that you will automatically receive millions in compensation for a valid misdiagnosis claim. The NHS or court will look at the specific damage/effects of the misdiagnosis, the severity of the damage suffered and what impact it has had on a patient’s quality of life, before deciding on a suitable compensation amount.
It is not possible to accurately say what you could get if you have been a victim of this type of clinical negligence, but the legal experts may be able to give you an idea once they have reviewed your specific case.
Aspects like any significant financial loss and extended recovery time also get consideration.
How To Get Help Starting Your Medical Misdiagnosis Claim
If you feel you have a valid medical misdiagnosis claim we would suggest that you contact Claims Compass as soon as possible. The experienced claims advisors we work with will be able to assist you with your claim and will be happy to arrange a free, no obligation call.
An experienced claims advisor or solicitor will not only help you navigate through the legal hurdles of a valid claim and present a strong argument on your behalf in court, but they can also help you explore viable funding options such as Conditional Fee Agreements (no win-no fee) if you cannot afford to cover the legal costs of filing a medical misdiagnosis claim.
Get in touch today by submitting your claims details using the fast and secure form below.