What are our rights if our child was misdiagnosed in the ER?

Our 6 year old daughter went to the ER complaining of severe chest pain. The attending physician did some blood work but no EKG ot X-ray of any type. His diagnosis was a muscle pull. We took her to our family physician today who determined that she has fluid around her lung and is ordering CT scan ASAP. Do we have any type of malpractice case even though permanent injury has not been determined as of yet?

Asked on February 6, 2013 under Malpractice Law, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

To have a viable malpractice case, you need two things:

1) Liability, which generally is based on carelessness--not providing medical care that meets accepted standards. If it would be considered careless or sloppy to have not EKG'd or X-ray'd, there may be liability.

2) Injuries or damages caused by the malpractice (i.e. not by the underlying condition itself, but due to the misdiagnosis, such as due to a delay in proper treatment). The U.S. legal system only provides compensation for actual injuries or losses: e.g. additional out-of-pocket medical costs, pain and suffering for serious conditions, etc.

Medical malpractice cases are expensive: you need a medical expert on your side. Until you incur significant medical bills due to the misdiagnosis, or there is evidence the misdiagnosis injured your child, it is most likely not worthwhile to pursue a malpractice claim.

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