Medical Misdiagnosis Claims Australia - Know Your Rights | Law Partners

Medical Misdiagnosis Australia - Claims Guide.

If you’ve had a medical condition or illness misdiagnosed in Australia, you might be entitled to claim medical misdiagnosis compensation. This claims guide answers all the most commonly asked questions and explains how to make a successful medical misdiagnosis claim.

What is medical misdiagnosis?

Medical misdiagnosis occurs when a medical professional diagnoses the wrong condition or fails to diagnose a patient’s condition altogether. If a medical condition is misdiagnosed it can result in a worse outcome for the patient through delays in treatment, incorrect treatment or no treatment at all.

Delayed diagnosis is when a medical professional fails to correctly diagnose symptoms or refer a patient for appropriate investigations, resulting in a delay in a condition being diagnosed. Delayed diagnosis can lead to delayed treatment that can result in a worse outcome for the patient.

What do you do if you’ve been misdiagnosed?

Being misdiagnosed can have serious implications, especially if it results in delays to treatment for life-threatening illnesses like cancer. If you believe you’ve been misdiagnosed:

  • Make sure you’re clearly communicating your concerns to your treating medical professional
  • Provide them with as much information as possible
  • Don’t be afraid to ask questions and try to fully understand your diagnosis
  • Ask what other possible diagnosis there could be for your symptoms
  • If you feel in any way uncertain seek a second medical opinion

Is misdiagnosis medical negligence?

Yes, misdiagnosis can be considered medical negligence, if it can be shown that the medical professional breached his or her duty of care and the result was a worse clinical outcome for the patient. Misdiagnosis forms a large part of medical negligence claims in Australia against general practitioners, specialists, hospitals and emergency departments.

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Claiming Compensation for Medical Misdiagnosis

Can I make a claim for medical misdiagnosis?

Yes, if the misdiagnosis was the result of negligence and has resulted in a worse clinical outcome for you, then you may be able to make a medical misdiagnosis claim. To be eligible for medical misdiagnosis compensation you’ll need to prove that the behaviour of the medical professional didn’t meet the appropriate standard of care and that you suffered an injury or loss as a result. A specialist medical misdiagnosis solicitor will be able to assess your situation and tell you if it’s likely that you have a valid claim.

How much can I claim for misdiagnosis?

Your medical misdiagnosis compensation payout will depend on the extent of your injuries or illness and the impact they have on your life. Here are two examples of medical misdiagnosis cases and payouts:

Case 1: Misdiagnosis of appendicitis – $750k

  • This patient went to her doctor with abdominal pain and was misdiagnosed as having an ovarian cyst
  • She was eventually diagnosed with a ruptured appendix seven days after her initial examination
  • As a result, she has suffered long term physical and psychological issues, which could have been avoided had the appendicitis not been misdiagnosed
  • This patient was awarded a medical misdiagnosis compensation payout of $750k

Case 2: Paraplegia caused by delayed diagnosis – $4.5M

  • The patient presented at hospital with severe neck pain
  • The hospital misdiagnosed him as having a muscle strain
  • He eventually collapsed at home and became unresponsive
  • He was rushed into surgery where it was found he had a cervical spinal epidural abscess caused by a Staph infection
  • Despite undergoing surgery, the patient was left paraplegic and spent the next four months in hospital
  • This patient was awarded a medical misdiagnosis payout amount of $4.5M to cover his losses and pain and suffering and to support his future care and treatment expenses

What can I claim for?

Medical misdiagnosis payouts range from tens of thousands of dollars to millions of dollars. Depending on the severity of your injuries, the total compensation amount can include:

  • Lost income – the amount of income you’ve lost through time off work
  • Medical expenses – resulting from your injuries
  • Travel expenses – to and from medical appointments and treatment
  • Domestic assistance – the cost of getting help with home duties
  • Pain and suffering – an amount to compensate you for your pain and suffering, based on the extent of your injuries
  • Future losses – for example, your future earnings that you will miss out on as a result of your injuries

You can read more about this in our guide to medical negligence compensation.

How long do I have to make a medical misdiagnosis claim?

You have three years from the date of “discoverability” of your injury or illness to lodge your medical misdiagnosis claim. The date of discoverability can be difficult to pinpoint, and exceptions can be given to children and people with disabilities, so if you’re unsure whether you’re still able to claim in Australia, you can call 13 15 15 for free legal advice.

How to sue a doctor for misdiagnosis

Most medical misdiagnosis claims settle by way of mediation, where all parties agree on a medical misdiagnosis compensation settlement. However, if mediation fails, then your claim may need to proceed to a hearing in order to claim compensation. To find out if you can sue for misdiagnosis, it’s important to get legal advice from a specialist medical misdiagnosis lawyer to understand what are the chances of your claim succeeding.

Pursuing legal action can be risky and potentially costly, however a “no win no fee” medical misdiagnosis lawyer may take on your case and fund it for you if they’re confident of succeeding.

How do I prove I was misdiagnosed?

To prove that medical misdiagnosis has occurred, you’ll need a medico-legal expert to undertake a thorough assessment and conclude that the medical professional was negligent in his or her duty of care. Medical misdiagnosis claims are complex, and you’ll need to engage the services of a specialist medical misdiagnosis lawyer to build the case on your behalf. Many law firms will provide a free assessment of your situation and advise you on the chances of successfully proving medical misdiagnosis before you proceed.

How long will my medical misdiagnosis claim take?

Medical misdiagnosis claims often take years to settle. This is because claims can be complex, and it may be necessary to wait for injuries or illnesses to stabilise before a claim can be made.

However, it’s possible for claims to settle in a shorter timeframe if injuries have stabilised and there is clear evidence that medical misdiagnosis has occurred, or if your circumstances require a more urgent settlement.

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The Most Common Types of Medical Misdiagnosis Claims and Examples

Misdiagnosis generally falls under one of the following four categories:

Wrong Diagnosis A typical example is when a patient who presents with chest pain is misdiagnosed with a relatively minor condition such as gastro-oesophageal reflux disease (GERD), when in fact the patient’s symptoms are caused by a more serious condition such as a heart attack or a pulmonary embolism and no steps are taken to diagnose or treat those conditions.
Missed Diagnosis This typically occurs when the patient is certified as fit, when in fact he or she suffers from a medical condition that could have been diagnosed at the time of certification.
Delayed diagnosis Usually occurs when the medical practitioner fails to obtain a proper history or refer the patient for appropriate investigations to rule out a particular condition.
Failure to diagnose a related or unrelated disease Occurs when the medical practitioner diagnoses and treats only one condition, when the patient’s symptoms are caused by more than one condition. This leaves the undiagnosed condition untreated and allows it to progress further and affect the patient’s prognosis.

What are some examples of misdiagnosis?

Conditions and illnesses that are sometimes misdiagnosed resulting in a worse outcome for the patient include:

  • Cancer
  • Heart attack
  • Meningitis
  • Stroke
  • Deep Vein Thrombosis (DVT)
  • MS
  • Fibromyalgia
  • Mental illness

For example, a heart attack can be misdiagnosed as anxiety or indigestion; however, it can be deadly without timely treatment.

Cancer misdiagnosis

Medical misdiagnosis cases involving a serious condition like cancer where early treatment is important can have a devastating impact on a patient. It can result in worse outcomes, longer treatment times and a significant psychological and financial burden. In particular, misdiagnosis or delayed diagnosis of the following cancers can have serious implications for the patient:

  • Breast cancer
  • Colon cancer
  • Cervical cancer
  • Lung cancer
  • Prostate cancer
  • Ovarian cancer
  • Skin cancer
  • Testicular cancer

In a situation where a patient has presented to a medical professional with symptoms of cancer, but the medical professional misdiagnosed the cancer, then the delay in treatment could allow the cancer to spread and result in a much worse outcome.

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