Delayed Diagnoses: Is Lost Time Compensable?
Being diagnosed with a disease or condition can be a horrible shock, but receiving the diagnosis too late can be much worse. California recognizes a cause of action for delayed diagnosis under medical malpractice, because losing time with one’s loved ones, or quality of life in one’s later years, are quantifiable losses. If you have received a late diagnosis, it may be worth your time to see whether or not you may be entitled to compensation.Not All Diagnostic Errors are Malpractice
Many individuals labor under the misapprehension that any mistake made by a doctor automatically constitutes malpractice, but under California law, this is untrue. In order to qualify as malpractice, an incorrect diagnosis (which would encompass not diagnosing, in many situations) must meet three criteria. They are:
- A doctor/patient relationship must exist between the plaintiff and the defendant. In California, this is established by law;
- Proof that the doctor’s incorrect diagnosis was negligent - that is, that it was a part of a pattern of failing to meet the accepted standard of care, and it was the direct cause of harm done to the patient; and
- Proof that the doctor’s incorrect or delayed diagnosis caused tangible harm.
In short, a plaintiff must prove that a delayed diagnosis amounted to negligence in order to receive compensation. This will depend on the individual facts of the case; if a diagnosis of cancer is received later than it would have been from a doctor of similar age and experience, but no harm is done to the patient, no malpractice has taken place.Errors in Diagnostic Testing
Sometimes a diagnosis may be delayed due to false testing flags or tests simply being done incorrectly. While in most cases, this error would still be the responsibility of the doctor to avoid, it is also plausible that the equipment or methodology used for the test may be inaccurate or incorrect. The same criteria remain; a plaintiff would have to prove that the delay in diagnosis was due to negligence, but the difference is that it is plausible to have multiple liable defendants.
If, for example, the machine used to perform a test is found to be faulty, a plaintiff may have a cause of action not only against the technician or doctor who performed the test, but also against the manufacturer of the machine (though the latter would likely be under the principles of product liability, rather than of medical malpractice). It goes back to the idea of the standard of care; if a reasonable medical professional would have been able to run the test in a correct manner, the technician or doctor who made an error can reasonably be held to have been negligent. As long as the plaintiff can prove causation and tangible harm, any defendant may be held liable. California also observes the common-law rule of joint and several liability, meaning that if multiple defendants are sued and one or more turn out to be judgment-proof, the full amount of a jury award may be collected from the defendants who are not (regardless of percentage of fault).A Medical Malpractice Attorney Can Help
If you believe that you have been harmed by a delayed diagnosis, it is a good idea to contact a knowledgeable lawyer. The skilled San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. have years of experience in cases like these, and we will do our best to advise you as to the best course of action for you and your family. Contact us today at (408) 289-1417 or via our website to schedule a free consultation. We serve San Jose, the Bay Area, and the counties of Alameda, Monterey, San Mateo, Santa Clara and San Benito.Source