What legal options do I have?

UPDATED: Oct 1, 2022

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What legal options do I have?

Hi, My left ear has been blocked for about 2 months.
I went to the doctor and initial diagnosis was wax in
my right ear 10/24 – I went in for my left ear. They
cleaned my right ear and sent me home. A week
later, I went back because there was no change to
my left ear – new diagnosis was dysfunction of
Eustachian tube fluid in middle ear. I started a
treatment plan, but after weeks of no change I went
back on 11/29 – doctor cleared my ear and said
nothing is wrong even with me explaining that
symptoms had worsened. This past weekend, I went
to my work company party and every time there was
clapping I was in a lot of pain. I went back 12/6 and
insisted she take another looknot only was there
still an issue with fluid in my ear, it’s now behind my
eardrum and has caused an infection. I was put on a
course of antibiotics right away to prevent hearing
loss from the infection.

Asked on December 7, 2017 under Malpractice Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If it was malpractice, you could theoretically sue, but the problem is that you can only get compensation equivalent to the additional medical costs you incurred due to the misdiagnosis and some amount for "pain and suffering" for significant disability and life impairment lasting generally many weeks or months or more. For what you describe, the amount of compensation you could receive would typically be small--very possibly less than the cost of the lawsuit, since malpractice cases can be very expensive (even if you were to be your own attorney or "pro se"--which is *not * recommended--you'd have to hire and pay for a medical expert to examine you, write a report, and testify in court, which can easily cost $1,500 - $3,000 or more).]
It would only be malpractice in the first place if the diagnose was neglient or unreasonable careless. It's not enough that it was wrong; the law accepts that doctors sometimes get things wrong. It would have to be a diagnosis that (essentially) no reasonable doctor would have made under those circumstances to be malpractic and give rise to any liability.

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