LOUISVILLE FAILURE TO DIAGNOSE LAWYERS

Proving failure to diagnose is arguably one of the most challenging medical malpractice claims. It requires a robust legal mind to build a case with the evidence required. While every case is unique, here are some common health issues that can become critical or deadly when a physician fails to diagnose accurately:

• Failure to diagnose ectopic pregnancies
• Failure to diagnose bowel blockage
• Failure to diagnose pneumonia
• Failure to diagnose appendicitis
• Misdiagnosed heart conditions
• Misdiagnosed infections
• Failure to diagnose life-threatening infections like sepsis, staphylococcal, and meningitis
• Misdiagnosed presence of breast cancer
• Failure to diagnose a stroke or pulmonary embolisms
• Failure to diagnose allergic reactions
• Failure to diagnose poisoning
• Failure to diagnose internal bleeding
• Failure to diagnose a spinal cord injury
• Failure to diagnose a head injury

There is evidence that failure to diagnose could be the single biggest danger in the medical community. Diagnostic errors are more common than both surgical errors and medication errors and make up a considerable portion of medical malpractice claims. Some leaders in the medical field think the problem is even bigger than what we imagine. 

Diagnostic errors can cause tremendous harm to individuals who, had they been appropriately diagnosed, may have received treatment to prevent the illness from worsening or halted or reversed its progression. Furthermore, a wrong diagnosis can result in a patient receiving treatment for an illness they do not have. In contrast, the actual illness takes hold of the patient. Diagnostic errors can leave a patient with a permanent disability or be fatal. When a patient dies due to failure to diagnose, compensation will likely skyrocket. But why is failure to diagnose so prevalent in the medical field? Here are some common reasons that may lead to a failure to diagnose:

• The treating physician is inexperienced
• Test results are misinterpreted
• Scans are misread
• Lack of knowledge of the patient's medical history or failure to get the patient's medical history
• Incorrect results, whether by a technical/mechanical failure or human error
• The physician doesn't have the expertise with a specific medical condition or failed to apply their knowledge accurately 

Proving failure to diagnose in a medical malpractice claim requires the following elements to be established:

A physician-patient relationship existed - There must be an established relationship between you and the physician. This relationship is usually the most accessible element since you'll likely have paper and digital trails such as medical bills, appointment reminders, and receipts for co-pays. However, suppose you're at a friend's house for a dinner party, and you learn one of the guests is a physician. If you ask them for advice concerning a mole, they suggest it's an average mole, and then you later find out it's skin cancer, this verbal social exchange would not prove that a physician-patient relationship existed.

The physician breached the standard of care - The physician failed to administer the standard of care expected where another physician with the same skillset would have administered under the same circumstances. The standard of care is a measure used to qualify whether a doctor failed in their duty to the patient. When there is a breach in the standard of care along with other elements, you may be able to prove medical malpractice. 

The physician's negligence is the direct cause of a patient's illness, injury, or death of a patient - The physician's actions or inaction must be directly connected to the patient's harm.

Damages - The final element to prove a physician's failure to diagnose, and thus medical malpractice, is damages. The victim must have medical bills for correcting the harm, or a monetary amount for pain and suffering must be linked to the claim. Without damages, you don't have a claim.

Expert Witness Requirements in Kentucky Medical Malpractice Claims

Breaching the standard of care is often the most significant aspect of a medical malpractice claim. In Kentucky, an affidavit of merit used to be a requirement to enter into legal proceedings. An affidavit of merit would show that a plaintiff had just cause to file the lawsuit, which required a lengthy and overly burdensome review process. However, in 2019 the Kentucky Supreme Court repealed this mandated legislation finding that the mandatory review process violated citizens' rights by delaying access to the courts.

Now, a scaled-down version of the legislation is in place, which only requires a certificate of merit. An affidavit can be submitted stating that the plaintiff or their attorney reviewed the facts of the case with a qualified medical expert and found that the case has merit. That is all that is needed to file a complaint. 

Even so, in complicated cases, an expert witness's testimony may be required to explain abstract medical terminology and practices to members of the jury. A regular juror will typically have a nonprofessional understanding of the factors that influence the case. An expert witness can also explain the standard of care and how the physician deviated from what other medical professionals would have done under similar circumstances. 

An expert witness isn't always required in cases that are more straightforward. For example, suppose a patient visits the emergency room complaining of severe abdominal pain. Still, the treating physician dismisses the pain as "all in your head" without doing any diagnostic tests. Later the patient dies from a burst appendix. In that case, it could be plain to the jury that the doctor failed to uphold the standard of care expected of an emergency room doctor. 

Should you need an expert witness to testify in the courtroom, Morgan and Morgan Law Firm has an extensive network of expert witnesses that are available to testify on your behalf. It pays to work with the best failure-to-diagnose lawyers. Louisville victims of medical malpractice don't have to worry about lawyer's fees upfront either when choosing Morgan and Morgan. We are so confident with the experience of our lawyers that we work for free unless we win your case. 

It's impossible to tell how much your claim is worth without knowing the facts of the case. Each case is unique. When you chat with our legal team, they will be able to give a better idea of what your case is worth. Typically you can sue for the following in a Kentucky medical malpractice claim:

Economic damages - When you suffer from a failure to diagnose, there are losses that come with receipts. These are called economic damages and may consist of medical bills to correct the harm, loss of income, future expected medical bills, modifications to the home or vehicles that are required to adapt to a disability, nurse and in-home care expenses, and travel expenses.

Non-economic damages - When a victim suffers from harm that does not come with a price tag, these are known as non-economic damages. In Kentucky, non-economic damages can include pain and suffering, inconvenience, physical impairment, and other non-monetary damages. In the case of the wrongful death of a minor, surviving parents can sue for loss of companionship and affection.  

Punitive damages - This award is not meant to compensate the patient for harm or injury. Instead, punitive damages are a way for the court to punish the wrongdoer and make an example of them. Punitive damages are reserved for the most grievous of actions like willful negligence.

Kentucky does not have a cap on the damages you can recover from a medical malpractice lawsuit like many other states have. Whatever the jury awards you is what you can recover. 

When a victim of medical malpractice shares some fault in their condition, Kentucky uses a pure comparative negligence rule to assign a percentage of liability to both parties. For example, if you failed to provide the doctor with a history of medicines you are allergic to, and you have a severe allergic reaction, you may have partial responsibility. Regardless, if you can prove failure to diagnose was partially to blame for your condition, the courts will award you the damages you're owed. However, whatever percentage of blame you hold will be deducted from the final award. For instance, say the court awards you $500,000 but decides you are 20% at fault. In that case, your final award would be $500,000 minus 20% which would be $400,000.

Generally, you must file a medical malpractice claim within one year of the incident leading to your injury or illness. However, Kentucky recognizes the discovery rule. This rule recognizes that the clock doesn't start ticking until you discover your misdiagnoses or should have reasonably discovered the issue. Still, another Kentucky law states that no medical malpractice claim can be initiated after five years from the incident except under very strict circumstances. In one such case, the Kentucky Supreme Court invalidated the five-year rule because of the victim's exceptional circumstances. 

When you or a loved one is harmed by a doctor's failure to diagnose, you need the expert help of Morgan and Morgan's medical malpractice lawyers. You can be assured that your claim will take priority, and we will fight for your rights for fair compensation. You don't have to go through this alone. We will guide you through every step of the process and work hard to develop a winning legal strategy. Contact us today for a free and confidential case evaluation. Our motto is "For the People," and we work hard to live up to that commitment.