As attorneys, we often have people ask, “Can I sue my doctor for misdiagnosis?” to which we answer – it’s complicated. If a doctor fails to provide you with a timely and accurate diagnosis, you may have a medical malpractice lawsuit. However, it’s important to remember that there’s a difference between an honest mistake or a bad outcome and medical negligence.
Medical negligence occurs when a medical professional breached the appropriate standard of care for your specific circumstances. This means that in a hypothetical scenario, another doctor with similar training and experience would have correctly diagnosed you or at least done so sooner. In this post, our Houston personal injury attorneys at Reich & Binstock will answer your medical malpractice questions, including Can I sue my doctor for misdiagnosis? For any other questions, feel free to reach out to our experienced Houston medical malpractice lawyers today.
What can I sue my doctor for when not listening to me?
The questions, “Can I sue my doctor for misdiagnosis” and “What can I sue my doctor for when not listening to me?” are very different. In other words, you cannot sue your doctor for simply not listening to you. Many times, but certainly not always, your doctor knows more about what’s going on in your body than you think.
Let’s say you’re listing off symptoms and claiming you think you might have some disease. Your doctor brushes it off and tells you no, you do not have that disease. In this instance, you can’t expect a viable lawsuit simply because you feel they aren’t listening to you. The odds are that they listened to your symptoms and determined that it was something else afflicting you, not whatever you insisted upon it being.
Now, let’s word the sentence a little differently: Can I sue my doctor for denying my symptoms and failing to treat my illness? This gives us a little more detail. In the case that your doctor doesn’t believe your symptoms, gives you the wrong diagnosis, or fails to treat your illness, you might have a case there. Still, the situation must meet certain criteria to be successful in a lawsuit.
First of all, you must be able to prove that the doctor’s actions were, in fact, negligent. The entire lawsuit hinges on the fact that the treatment (or lack thereof) did not meet the proper standard of care. This standard is measured against what a reasonably competent doctor would have done under similar circumstances.
Secondly, you must be able to prove that the doctor’s mistake resulted in additional or further medical damages. It’s not enough that they failed to properly treat you, but that it inevitably led to a worsened condition or injuries.
To learn more about the 4 elements of negligence you must prove, read our related blog post.
My doctor did not do what he said he was going to do. Can I sue him?
Again, there is much more that must go into a medical malpractice lawsuit than simply the fact that your doctor did not do what they said they would. Sometimes, they may take a second look at your symptoms, scans, or test results and change their diagnosis.
Though it may be inconvenient when your physician doesn’t do what they said they would, they are not required by law to stick to their word. Instead, the law requires them to provide a certain level of care for their patients and make medical judgements to the best of their ability. If it is in their best judgement and your best interest that you change your course of treatment, your doctor may not do what they initially planned.
However, there is a difference between changing a course of treatment and performing unauthorized treatment.
Every individual possesses the right to receive information about their condition, prognosis, treatment choices and any risks associated with the treatment. The information must be in language plain and clear enough that a patient can make an informed decision regarding their care. This “informed consent” is a legal process that doctors must obey. Most hospitals and doctor’s offices require their patients to sign an informed consent document so that they have that proof of consent on hand.
If a physician fails to obtain informed consent from you, you have a valid lawsuit. However, just as before, there are a few things that you must prove to be successful in your claim. First, you must prove your doctor performed the treatment or procedure without your informed consent. Second, you must prove that even if you were properly informed, you wouldn’t have gone forward with it and therefore, would’ve avoided injury.
How long before I can sue my doctor for medical malpractice?
Like all civil cases, you must file medical malpractice lawsuits within a certain period of time. This deadline refers to the statute of limitations. Every state has their own laws regarding statutes of limitations for different civil cases. As medical malpractice falls under the personal injury area of law, it follows the statute of limitations set for personal injury claims.
The Texas statute of limitations for personal injury is two years. This means that you have two years from the date of the incident to file a medical malpractice claim. If you try to file a claim after the missing the deadline, your case will more than likely get dismissed.
How do I sue my doctor for a HIPAA violation?
Unfortunately, there is no private course of action under the Health Insurance Portability and Accountability Act (HIPAA). This means that a patient cannot sue anyone directly for a HIPAA violation under federal law. This may be confusing because it is against the law for medical providers to share private health information. However, patients cannot file a compensatory lawsuit if they find their HIPAA rights breached.
However, there are some circumstances where you may be able to sue for violations involving HIPAA under state law. If the breach resulted in “harmful” violations of your medical information, you may be able to hold the provider accountable.
If you can prove the negligent breach of your protected information resulted in harm, damage, or theft of unsecured personal data, you may be able move forward with a lawsuit. Without proof of actual harm, the success of the case is unlikely.
In the case that harm did ensue from the breach, you may have a case for either negligence or breach of an implied contract. For one of these lawsuits, the first step would be to file a complaint with the Department of Health and Human Services’ Office for Civil Rights (OCR). You can do this either through writing or by using the OCR online portal. If doing so in writing, make sure you use the official OCR complaint form.
The next step is to reach out to an experienced attorney. They will help you determine the likelihood of success for your case. If they feel your case is viable, they will then help you through the rest of the legal process.
What kind of lawyer do I need to sue my doctor?
To file a lawsuit against a doctor, you’ll need a personal injury lawyer with experience in medical malpractice cases. Every area of law is different, with many different rules and regulations uniquely specific to each area of practice. It is important that your lawyer has the proper experience and qualifications to represent you in the area of medical malpractice.
At Reich & Binstock, our medical malpractice attorneys have filed lawsuits for clients all over the Houston, Texas area who have been victimized by medical negligence. We are well aware of the proper standard of care that medical professionals must meet. If your provider failed to meet professional standards and rendered care that was below the required threshold, we may be able to help you.
If you’ve suffered as a result of a doctor’s misdiagnosis, call the medical malpractice attorneys at Reich & Binstock. Not sure whether you might have a compensable injury? We are available to give you our honest opinion and advise you on what to do next. Call 713-622-7271 or complete the online form below to schedule your free initial consultation.