Discussions of personal injury claims can be confusing. Like any other professional group, lawyers have created their own specialized jargon. Believe it or not, the reason for this is not simply to baffle the layman, though it sometimes does that. Generally, the specialized terms develop as part of a search for greater precision. The more the law specializes, the more specialized the jargon becomes. Medical malpractice is no exception to this general rule. Here is a brief look at medical malpractice liability for a failure to diagnose. As always, the best way to deal with legal concepts is to seek out a competent personal injury lawyer, one skilled both in the specific type of injury case in your jurisdiction.
Many forms of medical malpractice liability are about acts of commission, actively doing something wrong in the treatment. A doctor for instance might have performed the wrong procedure and you have been injured. Some examples of this might include having the wrong limb amputated, being given the wrong blood type, or being mixed up with another patient due to a records mistake and getting a completely incorrect treatment. These active mistakes can cause massive injury and sometimes death. However, these type of mistakes are more obvious, because a physician had to have actually done something fairly clearly incorrect, perhaps even to non-experts.
More difficult to assess are errors of omission. This is when a doctor should have done something and fails to take the correct action. Suppose you visit a family doctor for a routine physical. Further suppose that you are of such an age that you should be getting regular screenings of some kind. Perhaps a prostate exam, mammogram, or colonoscopy. Your doctor fails to administer this test or even recommend it. If you later develop cancer, it is possible that the delay in detection has reduced your survival chances. Other examples of tortious acts of omission include: a failure to diagnose a condition from standard tests, failure to notify a patient of positive test results, or a failure to refer a patient to a specialist. There are standards agreed to by doctors about procedures and rules for routine tests.
A key question with this kind of liability is whether the doctor’s mistake resulted in a delay that made a significant difference in outcome? If your doctor forgets to give you a prostate examination but your chances of survival were poor anyway, then the insurance company for the doctor will defend by saying that you would have died anyway. These sorts of cases are often harder than those involving acts of commission. Your attorney must show that the failure was a violation of the standard of care and that it likely made a difference in what happened to you. Legal proof will almost always involve numerous other doctors and expert witnesses.
We hope that you are never injured by a doctor’s carelessness. If you are, however, there are two main lessons to take away from this piece. First, be aware that not all medical mistakes involve overt actions. Second, if you think you may have been injured by a doctor’s negligence, always consult a skilled, experienced injury attorney, one with an intimate knowledge of the law and medicine involved in the case.