If you believe you have suffered because of a misdiagnosis or late diagnosis of a particular medical condition whether it was NHS misdiagnosis or a private medical professional then you could have a misdiagnosis claim for compensation.
Different Types Of Misdiagnosis
The reality is that where human decision-making is central to the diagnosis of a medical condition there will unfortunately be instances of misdiagnosis. There are three main types of misdiagnosis which are:
Total misdiagnosis is the less common of the three main types although unfortunately it does still occur. This is the most basic of medical errors where a medical professional fails to spot an array of symptoms which indicate various health conditions and illness. In these situations a failure to diagnose a particular problem can have a massive impact upon a person’s physical and mental well-being. At best it is likely to extend the recovery time and at worst it could actually impact a person’s life expectancy.
In many ways an incorrect diagnosis is worse than total misdiagnosis because this can lead to an array of medical procedures which are unnecessary and could themselves have consequences for the patient further down the line. We have seen instances in years gone by where patients have been diagnosed with cancer and undertaken painful chemotherapy and even had organs removed. While chemotherapy is an accepted form of treatment for some types of cancer it can itself cause serious side effects for many patients.
The mental element of misdiagnosis is often overlooked with many patients experiencing a severe psychological reaction to misdiagnosis with a life-threatening illness. During the period which the patient has been misdiagnosed, living with a potentially life-threatening illness can change their personality, change their way of life and lead to an extremely fragile state of mind. Psychological injury however will be taken into account in misdiagnosis claims.
An inability to recognise various medical symptoms in the early days of an illness can lead to late diagnosis which can in some circumstances reduce a patient’s life expectancy. The late diagnosis may be due to an incorrect diagnosis at the early stages or simply a missed opportunity to catch an illness when it may have been much easier to treat. We can only imagine the potential pain and suffering of someone caught up in a late diagnosis situation as well as the mental trauma when the truth is finally revealed.
Use Of Technology In Diagnosing Medical Conditions
While there is no doubt that improvements in medical technology have reduced the number of misdiagnosis compensation claims, there is still a large element of human input into the diagnosis of various illnesses. While x-rays and other medical scans may seem “black-and-white” the reality is that it is not always as straightforward as many of us might assume. There will be situations where one or more medical professional has misread x-rays and medical scans and administer incorrect treatment. However, in instances of misdiagnosis, and with the benefit of hindsight, this can become glaringly obvious, leading to misdiagnosis negligence claims and liability for compensation.
Reasons For Medical Misdiagnosis
There are many different reasons why the misdiagnosis of various medical conditions continues to this day despite improvements in medical technology. These include:
- A simple failure on behalf of healthcare professionals to investigate the symptoms of a potentially serious illness.
- GP negligence in an array of different forms.
- An inability of doctors to carry out the correct test/s which would rule out various conditions and lead to the correct diagnosis.
- Inadequate levels of expertise in various areas of the medical world have also led to a number of misdiagnosis compensation claims.
- Training and supervision issues often involving junior members of staff.
- The misreading of test results such as x-rays, MRI scans, CT scans, smears, biopsies and highly invasive tissue removal for further investigation.
In the world of medicine all medical practitioners have a duty of care to their patients. This duty of care is measured against what decisions and actions other medical professionals would have taken in similar circumstances. It is also worth noting that in order to pursue a successful misdiagnosis claim it must be proven that the medical professional was negligent and the misdiagnosis caused or exacerbated an illness/condition.
There may be situations where a delayed diagnosis or even a misdiagnosis would have had no material impact on a specific medical condition. So while negligence may well have been proven, the fact that this medical negligence had no impact on the illness or a person’s life expectancy may result in no compensation being awarded. As ever, each misdiagnosis claim will be considered on its own merits.
Can You Claim For Misdiagnosis Compensation?
In instances where a patient has experienced a greater level of pain and suffering, due to misdiagnosis, than would have been expected with the correct diagnosis, they might have a good case for misdiagnosis compensation. The traditional three-year window of opportunity in which to pursue a compensation claim is still in place, based on the date a misdiagnosis was corrected or a worsening health condition was connected to an earlier incorrect diagnosis. In some cases it could be many years before an incorrect diagnosis is discovered and corrected.
In most misdiagnosis claims the original recipient of the misdiagnosis will be the one bringing the claim for compensation although in instances of death or severe injury, legal representatives may well be able to pursue a claim.
Making A Misdiagnosis Claim
While individual misdiagnosis claims can vary widely, in theory there are potentially three different parties that can be pursued for misdiagnosis compensation. They are:
- GP surgeries
- NHS hospitals
- Individual consultants
While the NHS itself is a self-insuring body, which effectively means that all successful misdiagnosis compensation claims are paid out of the central budget, general practitioners and consultants will have their own individual insurance cover. This ensures that whichever body or bodies found to be negligent and liable to paying compensation will have the means available to cover any settlements. In the past there has been an issue with high levels of insurance premiums connected to consultant insurance cover and this is something which is currently being addressed with the UK government.
Starting A Misdiagnosis Compensation Claim
The starting point for any misdiagnosis compensation claim is to prove beyond reasonable doubt that a medical body or medical practitioner breached their duty of care – otherwise known as negligence. The level of care expected is measured against peers in the same profession and the reasonable expectations of a patient. There must also be evidence that the misdiagnosis caused injury, pain or suffering because of incorrect treatment or no treatment. This is commonly referred to in legal circles as causation.
In order to present your case to a medical negligence solicitor you will need as much evidence as possible including medical records, witness statements, details of corrective surgery as well as previous medical negligence claims by others that may have been made against a medical professional. The vast majority of medical negligence solicitors will have access to third-party medical experts who will be able to review the details of your case and offer further advice on potential misdiagnosis compensation. If a medical negligence solicitor believes you have a strong claim to misdiagnosis compensation they will almost always offer to take on your case on a No Win No Fee basis. This ensures that the solicitor’s legal expenses will be covered by the company itself with no liability on the claimant.
There will however be an agreement in place whereby the medical negligence solicitors company will receive a percentage (maximum 25%) of any misdiagnosis compensation award which they are able to secure. Where misdiagnosis claims are successful, the legal expenses of the claimant’s team are generally reimbursed by the defendant.
Out-Of-Court Misdiagnosis Settlements
While a misdiagnosis may be difficult to prove in certain circumstances, where it is quite obviously a case of medical negligence the claimant will often be approached about discussing an out-of-court settlement. Successful negotiations will limit the expenses paid out by the defendant and ensure that a misdiagnosis compensation award is released as soon as possible. There will however be instances where the two parties are unable to come to an agreement or perhaps medical negligence is disputed, at which point your claim will go before the courts.
Calculating Misdiagnosis Compensation
There are two specific types of compensation in misdiagnosis claims and are referred to as general damages and special damages. The various elements covered in general damages include financial compensation for:
- The claimants pain and suffering caused by the misdiagnosis
- Mental trauma
- Life changing injuries
There is no cap on the amount of compensation which can be awarded although the insurance companies and courts tend to refer to Judicial College guidelines. These guidelines show compensation payments in previous misdiagnosis claims and for a variety of different injuries in general. While not legally binding they do offer the basis of a potential settlement award although there is room for variation/discretion to reflect the individual nature of each case.
Special damages relate purely and simply to financial recompense for expenses relating directly to the misdiagnosis, pain and suffering. They will also take into account future funding requirements including elements such as:
- Earnings lost due to the misdiagnosis
- Future loss of earnings
- Alterations/adaptions needed to the home
- Medical related expenses
- Future medical expenses
- Additional transportation expenses
There is not any discretion when it comes to special damages in misdiagnosis claims although future funding levels will need to be estimated by professionals with experience in the relevant field.
Please contact us now if you would like to speak to a solicitor in confidence about making a misdiagnosis claim for compensation.