When is Misdiagnosis Medical Negligence*?

Written by
Áine McSweeney on
17 December 2021

What Is Meant by Misdiagnosis?

There are generally three categories of misdiagnosis: 

  • Incorrect diagnosis

The first is a situation in which a medical professional definitively offers a prognosis based on a person's symptoms and tests performed, but the prognosis ends up being incorrect, and in fact, the person has a different one. 

  • Delayed diagnosis

The second is a situation in which a medical professional makes a late diagnosis.

  • Failure to diagnose

The third is a situation in which a medical professional fails to diagnose a condition from a person’s presenting symptoms.

Is Misdiagnosis Medical Negligence?

When we attend our doctors, we trust in their assessments of our medical issues. This makes a misdiagnosis a very serious and traumatic event. If your doctor has failed to diagnose, and /or you have suffered delayed diagnosis and/or an incorrect diagnosis, you may be entitled to make a claim. 

A medical expert's failure to diagnose and /or a delayed diagnosis and /or an incorrect diagnosis may mean that early treatment can be missed out on and in some cases, permanent damage can be caused, or it could be fatal. There can be long lasting consequences, reduced life expectancy, prolonged pain and suffering. 

Different Types of Misdiagnosis Claims 

Among the conditions that can be misdiagnosed, are: 

  • Strokes
  • Meningitis
  • Diabetes
  • Ectopic pregnancy
  • Broken bones
  • Irritable bowel syndrome
  • Epilepsy
  • Cancer
  • Stroke misdiagnosis claims

Even when a stroke is diagnosed immediately, the consequences can be tragic. If a medical practitioner fails to recognise the warning signs and symptoms, the effects are far worse. If you or a loved one has suffered a stroke misdiagnosis, you may be entitled to claim. Early indications of a stroke include:

  • Slurred speech
  • Numbness in one arm
  • Facial collapse
  • High blood pressure
  • Blood infections

The longer the interruption of blood supply to the brain, the more devastating the damage. This means it is vital to recognise the signs of a possible stroke immediately. 

  • Meningitis misdiagnosis claims

Meningitis is a terrible illness even if it has been diagnosed and treated immediately. However, if your medical practitioner fails to recognise the symptoms of meningitis, the delay can lead to even more devastating results. The effects can be fatal if medical practitioners do not recognise the symptoms of meningitis quickly enough and fail to recognise its warning signs. 

  • Diabetes misdiagnosis claims

Diabetes is a chronic disease that can have life-changing consequences. If you have been misdiagnosed with diabetes, or your diabetes was not recognised quickly enough, the results can be detrimental to your quality of life. In extreme cases, this negligence can result in blindness, amputation, or kidney failure, with life-altering results. 

  • Ectopic pregnancy claims

A common pregnancy-related form of medical negligence is the misdiagnosis of ectopic pregnancies as miscarriages. In an ectopic pregnancy, a fertilised egg implants itself outside the uterus, usually in one of the fallopian tubes. This can cause vaginal bleeding and abdominal pain. The fallopian tube can even burst if the condition is not addressed promptly. Misdiagnosed ectopic pregnancies can prompt unnecessary surgery, causing serious health problems.

  • Broken bone misdiagnosis claims

You may be entitled to make a broken bone misdiagnosis claim if your doctor failed to make the correct diagnosis with the medical information and diagnostic tests available. 

You also need to demonstrate that you suffered as a direct result of the missed diagnosis of a broken bone. You must prove that you developed preventable health complications, a more serious break, or greater pain to be successful in a claim for compensation for a failure to diagnose broken bones.

  • Irritable bowel syndrome misdiagnosis claims

Many of the symptoms of bowel cancer are similar to the symptoms of conditions such as irritable bowel syndrome (IBS). This means that irritable bowel syndrome misdiagnosis may lead to a missed diagnosis of bowel cancer. If detected early, bowel cancer has a very high survival rate, so a misdiagnosis of IBS can delay the identification of bowel cancer and reduce the chances of a positive outcome.  

  • Epilepsy misdiagnosis claims

To be successful in an epilepsy misdiagnosis claim, you must prove that medical negligence caused the delay in diagnosis and led to avoidable suffering.

  • Cancer misdiagnosis claims

One of the key factors in the successful treatment of cancer is timely diagnosis. If the diagnosis of your cancer is delayed due to negligence, you may be able to claim financial compensation. Cancer misdiagnosis claims include claims for the following kinds of cancer:

  • Bowel
  • Breast
  • Cervical
  • Lung
  • Prostate
  • Ovarian
  • Skin
  • Testicular
  • Pancreatic 

Which healthcare professionals carry out medical diagnoses?

There are many medical professionals that come under the umbrella of diagnosing patients. This can include but is not limited to:

  • General Practitioners 
  • Consultants
  • Emergency Medical practitioners 
  • Dentists
  • Oncologists 
  • Audiologists 
  • Radiologists
  • Laboratory Technicians 
  • Psychologists 
  • Psychiatrists
  • Ophthalmologists 
  • Dermatologists
  • Obstetricians 

What Is the Time Limit for Misdiagnosis Claims

There is legislation that prescribes strict time limits in which legal actions must be commenced — this is the Statute of Limitations. In relation to medical negligence, the general rule is that proceedings must be issued within 2 years, less a day, of the date of the negligent act.

In some cases, a person will know immediately that there was a negligent act. The Statute of Limitations clock stops when court proceedings are issued. 

  • Date of knowledge

However, situations arise where it may be a period of time afterwards before a person realises there was a negligent act or wrongdoing and in those circumstances, the “date of knowledge” is then relied upon. The two-year period would only start to run from the date the person found out they had suffered an injury, and that this injury was caused by someone’s negligence. 

  • Children and individuals with intellectual impairment

If a child is subject to medical negligence, the process of making a claim differs from that of an adult. A minor – persons under the age of 18 years of age- may be in a position to bring a claim forward in the first two years following their 18th birthday. However, it is advisable to proceed with a claim on behalf of a minor child without delay. In order to do so, a parent /or Guardian does so on their behalf. 

This extension of time also applies to persons with intellectual impairment. 

What may a medical misdiagnosis injury cover 

IIt is important to note that each claim is considered on its own merits taking into account, for example, the individual circumstances of each claimant, age, occupation, the severity of injury and impact. Each case is unique and is considered on a case by case basis. However, in general, a medical negligence claim is usually broken into 2 types of awards of money or damages – 

  • General Damages

This represents the money you would receive for your pain, suffering and loss of amenity, physical and emotional injuries suffered as a result of the accident. The medical evidence in your case, together with the claimant’s own oral evidence is relied heavily upon in valuing general damages. 

  • Special damages 

This is the money you will receive in respect of your financial losses and expenses/out of pocket expenses you have incurred as a result of the accident. Your solicitor will collate all the information about your financial losses and expenses and put this information into a formal document called a schedule of special damages. Receipts and back up information, such as payslips, are important

Some examples of expenses include –

  • Travel expenses - the cost of travelling to and from your treating experts
  • Loss of earnings - if you worked prior to your injury and you are out of work as a result of your injury, you may be able to recover lost wages in your settlement to the date of settlement /award by the court and depending on the facts, loss of earnings into the future
  • Medical expenses and bills - the cost of for example attending your GP, consultants, etc. 
  • Care and assistance - Medical negligence can have serious and often life changing consequences and compensation is often necessary to help a person adapt to changes and their capabilities. This can range from the provision of specialist care to the reconfiguration of houses and cars and occupational therapists and/quantity surveyors are often instructed to prepare a report in respect of the same. 

Many factors are considered before a valuation for your claim can be given. Also, the value of your claim can change over time generally depending on your recovery. 

How to Make Misdiagnosis Claims

To be successful in a misdiagnosis medical negligence claim, it is necessary to provide evidence of the following: 

  • The standard of care you received fell below that of a competent physician of the same level, and 
  • This negligence must have caused you further injury, loss and damage. If this cannot be shown, then there is no claim of negligence. 

It is necessary to consider the following:

  • Is there a duty of care?

Generally, there is a duty of care on behalf of the doctor when there is a doctor-patient relationship

  • Was there a breach of duty?

Did the standard of care you received fall below that of a competent physician of the same level 

  • Can you show causation?

Did the doctor's misdiagnosis cause you harm? 

If you think that you or a family member have been the victim of misdiagnosis medical negligence it is important that you act quickly, contact us and seek advice. At HOMSAssist, we make the process of investigating your case straightforward. With your authority, we take up a copy of your medical records and engage with our panel of medical expert witnesses to review your medical records. If the expert is of the opinion that negligence has occurred, we will proceed with an action on your behalf.

We have over 50 years of expert legal experience advising such patients. 

Need assistance with a misdiagnosis medical claim?

Call us today on 1800 207 207 or contact us online