What happens when there’s a failure to diagnose or medical negligence?

When you visit your doctor with a medical complaint, or for a health certification of wellness, you expect them to be able to make an accurate diagnosis. When a diagnosis is incorrect, delayed or missed altogether, you can suffer very real harm. 

Failure to diagnose correctly and in a timely manner can be considered medical negligence in some cases, and you could be eligible to file a claim for compensation. At Gerard Malouf Partners, our medical negligence lawyers can help determine if you have a valid claim for a case of misdiagnosis, and how best to pursue compensation.

What is medical misdiagnosis?

Medical misdiagnosis can have several forms. It refers to:

• A medical professional who diagnoses the wrong condition, leading to incorrect treatment that causes undue harm.
• When they fail to diagnose a condition altogether, leading to no treatment being provided, resulting in harm.
• When they delay misdiagnosis through negligence leading to corresponding delays in treatment that cause harm to their patient.  

Examples of medical misdiagnosis 

In addition to the situations described above, medical misdiagnosis also occurs when a doctor or other medical professional diagnoses a single condition but misses others. 

For example, a doctor might see a patient presenting heartburn and assume it is acid reflux, when it’s actually the early signs of a pulmonary embolism. The patient is misdiagnosed, given acid inhibitors and sent home with a serious condition that could be fatal.

Alternatively, one or more diagnoses can be missed completely. A patient might be in fact suffering from a panic attack, but also have a respiratory condition that is being masked by the more obvious symptoms. The doctor could treat for the panic attack and send the patient home without checking for alternate diagnoses that cause similar symptoms. Missed diagnoses can also happen during a routine physical if a doctor overlooks immediate symptoms or relevant details in a patient’s health history. 

Finally, a delayed diagnosis typically occurs if a medical professional fails to correctly diagnose symptoms and doesn’t refer a patient for appropriate tests or labs. This can happen at the same time as a missed diagnosis, meaning the practitioner focused on one obvious issue and ignored signs of another problem. Delayed diagnosis of the underlying health condition can result in a worsening of the patient’s symptoms, or even be fatal.  

Is misdiagnosis negligence or malpractice?

Medical misdiagnosis can be considered medical negligence if the medical professional breached his or her duty of care, directly bringing harm to the patient. However, misdiagnosis does not always entitle a patient to make a claim for compensation. 

A claimant must be able to prove two things:

• That the medical professional did not exercise the same level of reasonable care or skill that would be expected of another medical practitioner in the same situation, and that this failure resulted in the doctor’s misdiagnosis.
• That the misdiagnosis resulted in harm or injury that wouldn’t have happened if the misdiagnosis had not been made. 

In short, the threshold can be described as “no harm, no claim.” However, mental and psychological harm does count in these matters, so if your life has been adversely affected due to emotional distress resulting from the misdiagnosis, you may still have a case. 

Medical negligence due to misdiagnosis is typically not malpractice — unless a medical practitioner deliberately withheld a correct diagnosis with the intent of causing harm, or tried to cover up misdiagnosis and caused further delays in treatment. 

Examples of medical negligence that could lead to a lawsuit

Medical negligence in the course of a misdiagnosis resulting in harm to a patient may be actionable on the part of the patient or patient’s family if the patient is underage or the outcome results in a fatality.

What are some examples of medical negligence in diagnosis?

Some examples of misdiagnosis that could result in a worse outcome for the patient and cause fatal mistreatment, failure to treat or delayed treatment leading to death include: 

• Cancer
• Heart attack
• Meningitis
• Stroke
• Deep vein thrombosis
• Mental illness

A delayed diagnosis can be a death sentence for someone with a rapidly advancing condition. Getting the correct diagnosis and medical treatment is something patients have a right to expect if a majority of doctors would have come to the right conclusions when discharging their duty of care during a health examination. 

What happens if you’re the victim of medical negligence?

Being misdiagnosed can have serious implications. This is particularly true if you turn out to have a life-threatening condition like cancer. If you believe you’ve been misdiagnosed, you should advocate for yourself immediately:

• Make sure you’re clearly communicating your concerns to your treating medical professional as well as their superior.
• Provide your doctor with as much information as possible, preferably organised in written form so they can review it.
• Don’t be afraid to ask questions and try to fully understand your diagnosis, even if it means taking up a little more of your doctor’s time.
• Ask what other possible diagnoses could be behind your symptoms, and share any familial history of illness or disease.
• Seek a second medical opinion if you feel uncertain or worried about your diagnosis or lack of one. 

A medical negligence claim should be a last resort. It’s always better to be proactive about your health, and it’s similarly better to make a fuss and be wrong than stay quiet if you think a medical provider is misdiagnosing you. 

What do I do if I’m the victim of medical misdiagnosis?

If you have been misdiagnosed and suffered harm as a result, you may have a case to make that the misdiagnosis was caused by medical negligence. 

 To be eligible for medical misdiagnosis compensation, you’ll be expected to provide significant evidence. You must prove the medical professional’s behaviour did not meet an acceptable standard of care set by their peers, and that you suffered a measurable injury or loss as a result. 

 A specialist medical misdiagnosis lawyer can help you assess your claim’s potential for compensation by reviewing your situation and all records, and informing you if it’s likely that you have a solid claim.

How do you make a medical misdiagnosis complaint?

• Australian legislation relating to medical negligence is mostly aligned throughout the country. However, small differences do exist between states and territories. You can review the particular requirements for lodging medical negligence claims in your region here:
• ACT (Australian Capital Territory)
• NSW (New South Wales)
• NT (Northern Territory)
• QLD (Queensland)
• SA (Southern Australia)
• TAS (Tasmania)
• VIC (Victoria)
• WA (Western Australia)

In most cases, for a breach of duty to be considered a causation of harm, the failure to provide duty of care must have been a “necessary condition” of that adverse event occurring. In other words, if the provider had not made the mistake, the patient would not have suffered the ill effects mentioned in their claim.  

To find out if you can sue for misdiagnosis, it’s important to get legal advice from a specialist, such as a medical misdiagnosis lawyer, to understand if you have a decent chance of your claim succeeding. 

Pursuing legal action can be costly, but at Gerard Malouf & Partners, we work on a “no-win, no-fee” policy to make it easy for you to pursue a claim. You won’t owe any legal fees until we secure your compensation. 

Typically, we are capable of settling your medical misdiagnosis claim by way of mediation, securing you a satisfactory medical misdiagnosis compensation settlement. However, if mediation fails, we’ll take your claim to a hearing in order to claim compensation in front of the court.

How long do I have to make a medical misdiagnosis claim?

In the majority of cases, you’ll have three years from the date of “discoverability” of your injury or illness that was caused by the breach of duty of care to lodge a medical negligence claim. If medical treatment was provided that was intended to cover up the misdiagnosis, you may also have a compensation claim for medical malpractice.

Children and people with disabilities can often claim an exemption. In some cases, if the date of discoverability spanned a time between several events that alerted you to an issue, the date may be shifted to accommodate your actual discovery period end date. A medical negligence lawyer can help you nail down the timeline.

Choosing the right medical malpractice attorney

A medical negligence lawyer can be the answer to successfully pursuing a medical misdiagnosis claim. Our professionals are well versed in the ins and outs of the legal system and the complexities of handling a medical negligence case. Because we don’t ask you for a retainer but take your case on a no-win, no-fee basis, you can be assured we believe in your case’s validity. 

How much is the payout for medical misdiagnosis compensation?

Your medical misdiagnosis compensation payout could range from tens of thousands of dollars to millions, depending on the severity of your injuries. We calculate an estimate of damages you can claim based on:

• Lost income (including future losses)
• Medical expenses (including travel expenses) 
• Domestic assistance, if needed 
• Pain and suffering, if applicable 

How long will my medical misdiagnosis claim take?

A medical negligence claim can sometimes take years to settle, because injuries or illnesses may need to stabilise before an accurate compensation claim can be made. However, in many cases, the injury is clear and defined, meaning that your medical misdiagnosis claim can be settled in a shorter time frame. 

We are one of the largest compensation claims specialists in Australia, winning over $4 billion for our clients.  Please contact Gerard Malouf & Partners today for no-obligation legal advice about your claim.