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Your Doctor Missed Your Diagnosis. What Do You Do Now?

Here are a few examples of misdiagnosis...

Your doctor misdiagnosed your cardiac disease.

Maybe she misdiagnosed your breast cancer.

Maybe your primary care doctor missed the nodule on your lung that he should have seen on x-ray.

Maybe your obstetrician failed to detect your baby was in distress causing brain damage and cerebral palsy.

Maybe the emergency room doctor failed to detect a fracture.

Maybe the radiologist in the emergency room failed to detect a bleed in your brain.

Maybe your ophthalmologist failed to protect your brain tumor causing you to go blind.

There are many examples of a doctor misdiagnosing medical conditions.

However, missing your diagnosis is only ONE of THREE elements needed to show that you have a valid case.

You should know that I receive many calls from people who believe they have a valid misdiagnosis case.

They are upset.

They are angry.

They are frustrated.

They believe their doctor clearly did them wrong.

They believe their doctor violated the basic standards of medical care.

While that may be true, we also need to show that your doctor's carelessness was a cause of your injury.

The carelessness is what lawyers call liability or responsibility.

In order to show to a jury that your doctor is legally responsible for your injury, we must bring in a medical expert who confirms that your doctor violated the basic standards of medical care. Without having a medical expert to support your case, we are not permitted by law to proceed forward.

After our medical expert confirms that your doctor was careless, we must then look to see whether that carelessness was a cause of your injuries.

In other words, what was the sequence of events that brought you here today?

Put another way, there must be a direct link between the doctor's wrongdoing and the harm you suffered.

There must be some connecting bridge that connects what the doctor did or did not do to your injury.

If our medical expert confirms that (1) there was wrongdoing and (2) that the doctor's carelessness caused injury, now we look to the third element.

We now must evaluate the extent of your injury.

Was this a temporary injury?

Was this permanent?

Is your injury disabling?

Is your injury going to reduce your lifespan?

Is your injury going to reduce the chance of you getting better?

Did you lose an opportunity to fix this earlier?

If this had been recognized earlier, would your outcome be different?

In every failure to diagnose case we look to see (1) whether your doctor failed to do something or (2) actively did something that was improper.

In law we call those things acts of omission or acts of omission.

Let me give you an example...

Let's say you're having abdominal surgery.

During surgery your doctor inadvertantly injures an adjacent organ.

He actively caused you additional injury by damaging an adjacent organ.

This may be a known risk of the surgery and the doctor may not be legally responsible here.

What if instead, during your surgery he accidentally cut your bowel and never recognized the bowel injury?

That's an act of omission. 

That means he failed to recognize or diagnose your bowel injury.

That could have deadly consequences.

Either one can cause injury.

From your standpoint, when evaluating whether or not you have a valid misdiagnosis case, it does not matter whether this was because of something the doctor did affirmatively to cause you harm or whether it's because of something he did not do.

Importantly during trial, our medical expert must be able to testify that the standard of care required certain things to be done. As a result of your doctor not doing what he should have done, your condition was not timely diagnosed and treated.

Why is that such a big deal?

It's because we know that the earlier a medicacl condition is diagnosed, the sooner you can start receiving treatment.

This is extremely important in failure to diagnose cancer cases.

It's extremely important in nerve injury cases.

It's extremely important in head injury cases.

It's extremely important in failure to diagnose cardiac disease cases.

A doctor who fails to diagnose a particular condition can inadvertently cause lifelong injury to you, the patient.

Don't get me wrong, no one here is saying that a doctor intentionally caused you harm.

If a doctor intentionally caused you harm, that would be grounds for criminal charges including assault and battery, among others.

Instead, the type of cases I am talking about here involve medical negligence.

Medical carelessness.

These are civil lawsuits where an injured patient seeks to be repaid for all the harm, losses and injuries you suffered at the hands of your careless doctor.

Likewise, we are not saying that your doctor is a bad person.

We are not arguing that he is a horrible person. (Although some patients might claim that to be true).

Instead, we are claiming that at a particular time, on a particular date, your once-trusted doctor was careless.

It was that carelessness that caused you to suffer injury.

Lifelong injury.

The law in New York permits you to bring a lawsuit in order to receive money as a form of compensation for all of your injuries caused by the person who is legally responsible.

I think it's fair to say that doctors do not wake up in the morning and say “Who can I screw up today?”

However, every one of us is accountable for our actions.

We put a higher trust and value in our doctor's actions because our lives are at stake.

When your doctor fails to diagnose your condition in a timely fashion, and now your treatment is delayed causing you injury, you have every right to be upset, frustrated and angry.

Since no one can turn back the hands of time and most doctors are unable to return us back to being injury-free, the only form of compensation that New York law allows us to obtain is money.

You should also know that in every misdiagnosis case we claim that you lost an opportunity to intervene and to have the appropriate medical treatment.

We argue that you lost an opportunity to have timely and appropriate treatment that could have and would have altered the outcome of your injury or disability.

To learn more about misdiagnosis cases and how an attorney evaluates a case like this, I invite you to watch the quick video below...

If you have questions about YOUR matter that happened here in NY, I invite you to call me at 516-487-8207. I answer questions like your every day and would love the opportunity to chat with you. 516-487-8207

Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer