Medical malpractice can occur on the basis of a misdiagnosis. The law however in North Carolina does not hold doctors legally responsible for all diagnostic errors. In most medical malpractice lawsuits based on an incorrect diagnosis the patients must prove: a doctor-patient relationship existed, the doctor was negligent, and the doctor’s negligence caused an injury to the patient.

 

In order to find that a medical professional acted with negligence, it must be shown that his or her conduct fell below a generally accepted standard of medical care. The General Assembly has established a statutory standard of care that all health care providers are held to. The statute states:

 

  • 90-21.12.  Standard of health care

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

 

In order for the plaintiff to establish that the medical care, they received fell below the standard of care they must present a medical expert in the same area of medicine as the accused medical professional. The plaintiff will have their expert witness establish what is the common standard of care in their area of practice. The plaintiff will have to present their expert testimony to show how the defendant’s care fell below the standard.

 

Additionally, a plaintiff must prove that a doctor in the same field of medicine would not have misdiagnosed the patient. The plaintiff could do this by either showing that their diagnosis was never even considered and tested, or that it was considered and never properly tested for.

 

In proving negligence in a medical misdiagnosis case a plaintiff must show that failing to accurately diagnose a condition or injury lead to additional harm to the patient. There are many ways in which a medical professional can cause harm with an incorrect or delayed diagnosis. The patient may be exposed to a more aggressive treatment than necessary; there could be unnecessary surgeries or an increased likelihood of complications or death from these treatments. The patient may also be at risk of additional injury or even death if they are not diagnosed properly and not given the treatment required in a timely manner.

 

The burden of proof remains on the plaintiff when it comes to the issues of causation in a misdiagnosis case. The plaintiff must prove that the medical professional’s misdiagnosis caused the injury or illness to worsen more than it otherwise would have had the correct diagnosis been made.

 

In a New York case of a woman found a lump in her breast, and claimed that she was misdiagnosed. Ms. Tesoriero sought medical attention and was given a basic mammogram. The doctor, in this case, Dr. Fisher came to the conclusion that there was “no evidence of malignancy.” The conclusion from these tests results that the doctor came was that no further tests needed to be ordered.

 

Ms. Tesoriero returned for a normal checkup over a year later and it was discovered that in fact, she did have breast cancer. Chemotherapy followed this diagnosis and this is when she decided to sue her doctor for medical malpractice on the basis of this misdiagnosis.

 

The case went to trial and the jury eventually decided that the doctor during this case was, in fact, guilty of medical malpractice on the basis of a misdiagnosis. In this particular case, the plaintiff met the burden of proof. The plaintiff was easily able to establish that there was a patient-doctor relationship. The plaintiff was able to bring in an expert in the field and say that she should have been given a sonogram, which would have discovered the cancer 16 months earlier. The lack of this test given shows negligence on the part of the first doctor, which is required in this type of case. The lack of a proper diagnosis also could have potentially cost years to the plaintiff because treatment was significantly delayed; this is what shows the causation. When the plaintiff was re-examined it was clear that the tumor had more than doubled in size and the cancer had spread. The reason that this proves causation is because of the lack of proper medical diagnosis caused the injury or illness to worsen and that is exactly what happened in this particular case.

 

In conclusion doctors in the state of North Carolina are not always held responsible for not properly diagnosing a patient. For a misdiagnosis or delayed diagnosis to be considered medical malpractice the doctor must have acted in negligence, which caused an injury or illness to get worse. The plaintiff must also have an expert witness to prove that the doctor did not hold up to the standard of care that is common in their field of medicine.

 

If you or a loved one was injured by the negligence of a medical professional please contact us at (704) 714-1450.  You will speak directly with a medical malpractice lawyer who can answer your questions and go over your options.  There is no fee for an initial consultation.