Can you claim for a misdiagnosis?

Question

José Manuel Alburquerque · Accepted Answer

Yes, but not every misdiagnosis is negligence. The doctor does not undertake to be right every time, but to use the proper means. The doctor's actions are judged by the symptoms and information available at each consultation, not by what came to light later. There is negligence when, with that information, a careful doctor would have ordered other tests, correctly interpreted a result or referred the patient to a specialist. If it cannot be known whether a timely diagnosis would have avoided the harm, but the delay deprived the patient of a real chance of being cured or of receiving less aggressive treatment, compensation is paid for that lost chance. When it is negligence There is usually negligence in cases such as these: The tests called for by the symptoms were not carried out, such as an electrocardiogram for chest pain or an imaging test for a lump. A clear result was misread, such as an X-ray showing a visible fracture or very abnormal test results. Warning signs were overlooked or the patient was discharged from accident and emergency without a serious cause being ruled out. There was no referral to a specialist when one was needed or nobody reviewed the result of a test that was still pending. By contrast, there is no negligence if the symptoms were unclear or common to many illnesses and the doctor acted as a good professional would have done with that information, even if the diagnosis turned out to be something else. What you can recover If it is proved that with a timely diagnosis the harm would not have occurred, the whole of the harm is compensated. Often this cannot be known for certain, for example with a cancer that might have progressed in the same way anyway. Compensation is then paid for the loss of chance, which is a percentage of the harm based on the probability of being cured or of surviving that was lost because of the delay. For example, if the full harm is valued at 100.000 euros and the judge concludes, with the help of the experts, that a timely diagnosis offered a 30 % chance of avoiding it, the compensation would be around 30.000 euros. What you need Your complete medical records, with all the consultations, tests and their results, to reconstruct what was known at each point. An expert in the relevant speciality to explain what a careful doctor would have done with that information and what difference the delay made. Claiming in time. The time limit runs from when you know, or could reasonably have known, about the harm, its extent and its possible connection with the care you received, normally when the after-effects stabilise. If you were treated at the expense of the public health service, it is one year. In private healthcare, the shortest time limit that may apply is three years if the events took place in Catalonia and one year outside Catalonia, although the prudent course is to make a written claim within the first year.