Is an undiagnosed condition malpractice?

UPDATED: Oct 1, 2022

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Is an undiagnosed condition malpractice?

For over 6 months up to a year, my 2 year old daughter had been constipated. We would go to the pediatrician or call them over 2-3 times a week. She was clearly in pain and her doctor had told us to up the Mirilax over and over again. We finally had enough of the same answer and went to the ER and demanded scans. Well it turns out that she actually had 2 massive cancerous tumors growing off her tailbone that prevented her from having normal bowel movements or urination. It’s been 3 months now and after 4 rounds of chemo and a

major resection surgery she is tumor and cancer free. Is there a case for malpractice or some type of neglect. We were basically told that we were new parents and sometimes kids act funny when they poop.

Asked on December 20, 2018 under Malpractice Law, Indiana


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Medical malpractice is negligence. Negligence is the failure to exercise due care (that degree of care that a medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit for negligence against the pediatrician, it  may be possible to settle the case with the doctor's malpractice insurance carrier. Your daughter's claim filed with that insurance carrier should include her medical bills and medical reports from the pediatrician and the cancer treatment.
Compensation for the medical bills is straight reimbursement. The medical reports document the medical condition and treatment, and are used to determine compensation for pain and suffering which is an amount in addition to the medical bills. 
If the case is settled with the malpractice insurance carrier, NO lawsuit is filed.
If you are dissatisfied with the settlement offers, reject them and file a lawsuit against the pediatrician for negligence. You will need to be appointed guardian ad litem to file a lawsuit on behalf of your daughter because she is a minor.
If the case is not settled, the lawsuit against the pediatrician must be filed prior to the expiration of the applicable statute of limitations or your daughter will lose her rights in the matter forever.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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