LawTalk Blog

What you should know about medical misdiagnosis

What you should know about medical misdiagnosis or medical negligence

If you’ve seen a medical professional (for example a doctor, surgeon, psychologist, and others) and you believe the advice or diagnosis they’ve given you is incorrect or that they have not given you any diagnosis when they should have, you need to get a second opinion.

Misdiagnosis can lead to no treatment or the wrong treatment which could lead to a less than optimal outcome.

Basically, when a medical professional is trying to diagnosis what is wrong with you, they are generally going through a list of potential causes and ruling them out as they prescribe medications, order tests and images, and gather more information from you; with each step, the list of potential diagnosis is hopefully reduced.

Can I claim compensation for medical misdiagnosis?

To know whether you have a legal claim for compensation means assessing what has happened to you. Misdiagnosis or failure to diagnose is not necessarily medical negligence.

For the medical misdiagnosis to be negligent, which could entitle you to compensation, you need to prove three things.

Firstly, you need to show the medical professional failed to meet the accepted standard of care to diagnosis/treat you at the time; this is what we call a breach of the duty of care or liability. That is, the doctor, radiologist, or other medical professional, in all the circumstances, should have made the diagnosis correctly and/or in a timely manner. To show this, an expert opinion from an appropriately qualified medical professional is required.

Secondly, the breach of duty (the delay or misdiagnosis) must have caused an injury; we call this causation. My colleague Suzanne has written a blog on causation. In relation to misdiagnosis causation can be difficult and will depend on a number of variables.

Unfortunately if the misdiagnosis or delay has not caused an injury; that is the outcome is substantially the same as if the diagnosis had been correct or timely, there may not be a claim. However, if the injury is worse or the medical treatment required is more invasive then there may be a claim for compensation.

Thirdly, there needs to be damage as a result of the misdiagnosis or delay in diagnosis. The actual misdiagnosis or delay in diagnosis needs to have caused you damage.

If the misdiagnosis or delay in diagnosis has made you angry this is not enough for a claim. If the misdiagnosis left you with, what the law calls, nervous shock or a psychiatric injury, a need for more invasive treatment, improper care, or a worse medical outcome you may have a claim for medical negligence.

Medical negligence is complex and you should speak to an appropriately qualified lawyer before making your own assessment on any potential claim; the sooner the better.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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