If I received an incorrect diagnosis from a hospital, do I have a malpractice case?

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If I received an incorrect diagnosis from a hospital, do I have a malpractice case?

I went to an emergency room with a 104 degree fever and pain in my pelvic/buttock region so intense that I could not walk. The doctor there said there was nothing really wrong with me, that she thought I was constipated and had “some hip pain”. However, 3 days later I needed to back to the hospital – a different one. They told me I was on the brink of death, I had a severe staph infection that was immediately detectable in my blood, a massive internal abscess in my pelvic region, and joint damage. Doctors there said if I had waited 2 more days to seek medical help that I’d be dead. Can I sue the first hospital?

Asked on December 15, 2010 under Malpractice Law, Missouri

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I am so sorry for your illness and your troubles.  The type of case that you wish to make and bring here is a failure to diagnose.  In some states bringing a medical malpractice case can be a difficult process.  Some states - like New York - require that the matter be "certified" as malpractice by a physician in the form of an affidavit.  But as with most all personal injury causes of action, consultation with an attorney is generally free.  Some you should take advantage of the free consultation.  You will most likely be asked to sign a retainer while they investigate the claim and release forms for your medical records.  Good luck to you.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The first issue was whether the hospital was in some way negligent, or careless, in misdiagnosing you. If they did not run the tests or come to the conclusions (based on your symptoms) that a "reasonable" medical care provider, in light of contemporary standards of care and medical knowledge, would have done, then yes, they may be liable for malpractice. On the other hand, if the personnel were well trained and did everything they should, then the are probably not liable--there must be fault, not just a bad outcome, for liability.

Second, what economic injuries or damages did you suffer? If your medical care was more expensive than it would have been with an earlier diagnosis; or you missed work and wages; or you have suffered some degree of severe or permanent pain and suffering (and an extra three days of discomfort probably is not worth suing for), then there is something to sue for and damages you can recover. If you "only" had a bad scare and an unpleasant time, there is no compensation you can receive in most cases--though you may choose to report the incident to the state organization overseeing and licensing hospitals so there might be some discliplinary action.


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