When one speaks of misdiagnosis, they usually speak about being diagnosed with condition A and in reality having condition B. However, there is a subset, of sorts, that gets much less notice: those who receive the correct diagnosis, but far later than they ought to have received it. Depending on the facts, this delay can be grounds to allege medical malpractice.Proving Negligence
It is important to realize that the mere fact of a delayed or erroneous diagnosis is not evidence of negligence in itself. To prove that a medical professional was negligent, you must prove four criteria, not only the existence of the delayed diagnosis. Those four things are:
- The existence of a duty of care between a medical professional and their patients, which California establishes by law;
- A breach of that duty;
- That the defendant’s conduct was the actual cause of the harm suffered by the plaintiff; and
- That you, the plaintiff, suffered tangible damages. The harm need not be physical, but it must be lasting - in other words, bruises and cuts is not sufficient harm to claim malpractice, while complex post-traumatic stress disorder (PTSD) might be. Damages in a delayed-diagnosis case might be that your cancer no longer responds to treatment, but might have had you been diagnosed in a timely manner.
Medical malpractice claims must prove not only negligence, but also that the doctor or other medical professional failed to conform to a reasonable standard of care. Generally, if a doctor of similar age, experience and talent would have acted in the same manner, the doctor in your case can be said to have provided care that met the reasonable standard. If not, then your case may be able to move forward.Issues Specific to Delayed Diagnoses
There are certain questions that will come up more often with delayed diagnoses than they would with a missed or incorrect diagnosis. The issue of harm is somewhat unique, for example; in standard medical malpractice suits, the alleged harm is usually due to someone’s actions. With delayed diagnosis, the alleged harm done is due to someone’s inaction, which means it can be more difficult to prove.
Also, the issue of the statute of limitations may affect your case. Standard medical malpractice cases must be filed in California no more than one year from the date the negligent act was discovered, but no more than three years from the date of the injury. However, when no affirmative act caused your harm, what is the actual date of the injury? The answer can get quite technical. It is generally best to speak to a legal professional before pursuing a claim for delayed diagnosis malpractice, just because the little things can play such an enormous role in the cause of action.Contact an Experienced Attorney
When medical professionals make mistakes, it is not always actionable. However, to determine when it is, it is always best to consult an attorney. The experienced and talented San Jose misdiagnosis attorneys at Corsiglia, McMahon & Allard, L.L.P. understand how frightening and difficult a diagnosis can be, and it can be even more disconcerting when it may come too late. Contact our offices today at (408) 289-1417 to discuss your options. We serve San Jose, the Bay Area, and the counties of Monterey, Alameda, Santa Clara, San Benito and San Mateo.Source