What should I do if my doctor misdiagnoses me?

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When we seek medical attention we rarely think about our physician or surgeon or hospital staff making a mistake. But, unfortunately, mistakes do happen at the hands of our medical professionals. And, while not all of these mistakes rise to the level of malpractice, some do.


The law provides an avenue for those who believe they were injured via their physician’s negligence. However, the elements of a medical malpractice claim are difficult to prove. This is because not every mistake a physician or health care worker makes is actually considered negligent. The medical profession is not an exact science and, as such, there is a certain amount of leeway given to those who make these serious and complicated decisions on a daily basis. 


The standard of care that physicians are held to is called the reasonable care standard. A simpler way to look at the standard is to think about what would be the most reasonable course of action that a physician or health care worker might take, under the circumstances, to give a person the appropriate treatment. If the physician followed accepted protocol of his or her peers and/or the expected care within the industry of medicine, in general, then the physician will not be found guilty of medical malpractice. An example might include;


After a car accident, an emergency room physician sends a patient for an x-ray to see if any bones are fractured in the area where the patient is complaining of pain. The patient is not showing any signs of distress anywhere else. The physician sends the patient for an x-ray of the area that appears injured. The x-ray appears normal for the area of pain and the physician proceeds accordingly. Later on, it is learned that a bone was fractured in an area where the patient did not complain of any pain, show any bruising, or any sign of injury. The physicians lack of finding the fractured area might not be negligent.


Therefore, to prove negligence a plaintiff in a medical malpractice claim must be able to show the following:

  1. The patient must prove all of the elements of negligence
  2. There must be damage as a result of the physician’s mistake
  3. The damage must have resulted directly from the physician’s mistake ie: the plaintiff must show that if the mistake had not happened, there would not have been the resulting harm
  4. The injured person must show that the physician acted in a manner that is not widely accepted within the profession. This does not mean that the majority of physicians would make the same decision or give the same advice. Instead, it means that the advice or treatment you received is widely accepted within the medical profession as a possible treatment option
  5. The physician did not adequately warn the patient of the possible risks and/or side effects of the procedure or medication or overall treatment being consented to. With a failure to warn claim a plaintiff must prove all four elements including
    1. Your outcome was a known risk
    2. The risk you took was significant
    3. Your physician never spoke to you or gave you any information about the risk
    4. If the physician had warned you of the risk, you would not have proceeded


It can be quite difficult for an injured party to prove all of the elements of a physician’s negligence. However, that is not to say that it cannot be done. Once a plaintiff does prove medical negligence occurred the question then is one of monetary damages. There are many facets to the determination of monetary damages.


Currently, the Civil Liberty Act of 2002 is the controlling body of law for the determination of damages to an injured patient. The types of damages that could be covered include:

  • Medical treatment
  • Rehabilitation needs
  • Medications
  • Lost wages
  • Lost superannuation payments
  • Pain and suffering


The assessment of monetary damages is one which is in the hands of the Court. Many factors will be taken into consideration when making a determination for monetary damages. As such, it is very difficult to predict the amount of an award an injured person might receive from a medical malpractice claim. 

If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.


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