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A Common Type of Medical Malpractice: Delayed Diagnosis

A misdiagnosis or a delayed diagnosis is a common medical mistake that impacts the lives of patients and their families in Albany and across the country.

As NBC News reports, “most Americans” will receive a delayed or wrong diagnosis at some point in their lifetime. Citing a report by the National Academy of Medicine, NBC states that at least five percent of adults who undergo outpatient care experience a diagnostic error. Additionally, diagnostic errors account for between six and 17 percent of adverse hospital events.

When a delayed diagnosis or a misdiagnosis results in the worsening of a health condition or disease, the impacted patient may have grounds to file a medical malpractice claim. It is important to consult with an experienced New York medical malpractice attorney to learn more about your legal rights.

What Is a Delayed Diagnosis?

A delayed diagnosis and a missed diagnosis are similar but not quite the same.

A delayed diagnosis refers to an instance where a patient’s health condition, disease or ailment is not diagnosed within a reasonable amount of time. It does not refer to instances when a patient does not seek medical care.

Instead, a delayed diagnosis specifically means that the patient sought medical care – for whatever reason – but the treating physician or hospital did not diagnose the actual condition from which the patient was suffering.

For instance, a patient may have been suffering from lung cancer that went undetected by doctors for many years.

A misdiagnosis, on the other hand, refers to an instance where the doctor does make a diagnosis for a condition, but the diagnosis is not correct.

For example, a doctor may diagnose a patient with bladder cancer and start the patient on treatment for that cancer when, in fact, the patient has prostate cancer and should be receiving a different from of treatment.

When Delayed Diagnosis is Medical Malpractice

A delayed diagnosis is not always a type of medical malpractice. For example, as suggested above, if the patient does not seek medical care, then a doctor cannot be held liable for failing to make an accurate diagnosis.

Similarly, if the patient does not report certain symptoms to the doctor or withholds information from the doctor that would be necessary to make a proper diagnosis, then it cannot be said that the doctor committed an act of malpractice.

In fact, a physician only commits medical malpractice in the event that he or she violates the medical standard of care that is owed to a patient. The following examples illustrate scenarios in which a doctor may have committed malpractice in regards to an incorrect or delayed medical diagnosis:

  • A doctor notices abnormal levels during a routine blood check but does not order further tests
  • A patient reports certain symptoms but the doctor dismisses these symptoms as being signs of a less-serious illness
  • A patient’s lab work is lost, confused or conducted incorrectly
  • A doctor fails to refer a patient to a specialist when all signs indicate that she or he should do so
  • The doctor should have taken further action such as conducting different tests or asking different questions but did not do so.

Furthermore, the doctor must have done something that a reasonable physician in the same position would not have done or failed to have done something that a reasonable physician in the same circumstance would have done.

Did the Delayed Diagnosis Lead to Harm?

Another component of a medical malpractice claim is proving that the delayed diagnosis or misdiagnosis caused actual harm to a patient.

For example, if a patient’s cancer was not detected early on due to physician negligence when it should have—and could have—been detected, and if the cancer spreads as a direct result, then malpractice in the form of a delayed cancer diagnosis has occurred.

In other words, malpractice only occurs when the patient suffers a degree of harm that he or she would not have suffered otherwise but for the act of negligence committed by the physician or other healthcare professional.

How Do You File a Medical Malpractice Claim for Delayed Diagnosis in New York?

A delayed diagnosis can be devastating for patients and their families. Just consider the example above: If cancer spreads through a patient’s body, that patient may suffer more pain, face a decreased chance of survival and incur more medical bills. The patient may even die as a direct result.

When a delayed diagnosis or misdiagnosis has caused undue patient harm, the patient (or his or her surviving family members) has the right to file a medical malpractice claim against the at-fault party. Those who may include the physician and the hospital or clinic that employs the physician.

Under New York Civil Practice Law, all actions for medical malpractice must be filed within two and a half years from the date that the act or omission occurred. Under certain circumstance, this time period may be increased.

Why is having a copy of your medical records important?

Most people have more than one doctor involved in their health care. While your primary care physician usually acts as the manager of your health care, often your specialist physicians do not communicate with each other or do not receive important information about your medical history. Lack of communication between your physicians can lead to mistakes and problems.

One of the best ways to avoid problems and to ensure that all of your medical providers have the information they need about your medical history is to keep copies of your own medical records and bring them with you to medical appointments. This doesn’t mean you need to carry around stacks and stacks of medical records.

However, it is suggested you have your most up-to-date medical records with you at your medical appointments. It is not safe to assume that your specialist physicians, such as a cardiologist, orthopedists, and endocrinologists, have seen your medical records or have all the information they need regarding your health.

How do you obtain copies of your medical records?

You ask! The simplest way to obtain copies of your medical records is to ask your doctor’s office for copies following each appointment. Even if they are not immediately available, you should request your records or test results be mailed to you as soon as they become available. You will be required to confirm your request for records in writing and sign such a request.

The laws in New York State allow a patient to request their own medical records from any medical provider or health facility. For example, the “Patient’s Bill of Rights” allows a patient to review their own hospital medical record without charge and to also obtain a copy of such records for a reasonable fee. The hospital is not permitted to deny you a copy of your medical records just because you cannot afford to pay the charged fee.

Other “qualified persons” can also gain access to medical records and obtain copies if requested. Such “qualified persons” include parents of minor children, attorneys, holders of health care proxies for living people, and distributees of a deceased family member.

Did the doctor of the hospital give me the records I asked for?

The quick answer is maybe, or maybe not. In the “old” days, medical records were kept in actual medical charts, on real paper, and were stored on shelves. However, those days are gone. You have probably noticed that many doctor’s offices and hospitals have computers, which the doctors, nurses, and receptionists use to record everything that occurs during your doctor’s appointment or hospital stay.

Many times the record or note of your medical appointment is only available on a computer system and is never printed off and placed in your “paper” medical chart. While computers have aided the medical community in sharing information about patients such as you, oftentimes medical providers don’t know where to look for a patient’s medical records. One doctor may only look at the computer records and not the paper medical chart itself when there could be valuable information found only in the paper chart, and not on the computer, or vice versa.

That is why it is very important that when you request to view or copy your medical records, you also request copies of any computer or electronically stored materials that relate to your health. For example, laboratory test results or radiology reports may only be available by searching a computer database, and not recorded in the paper chart, so you want to make sure to specifically request all records, not just those that are contained within your “paper” medical chart.

“Cheat Sheet” for your health

It seems like everyone today has a Blackberry®, IPhone®, or at least a computer they use every day. Why not create a “cheat sheet” of your medical information for quick use at medical appointments or in case of a medical emergency?

It can be as simple as a list of what medications you are currently taking (including dosage and frequency) and the name, address, and phone number of all of your current treating physicians. You may also want to include your health insurance plan information and the name and contact information of your health care proxy if you have one.

With your “cheat sheet” available, you can have confidence that your medical providers will have basic up-to-date information at each appointment. You can even provide the nurse or doctor with a copy of your “cheat sheet” to save time and ensure accuracy.

How Can a Delayed Cancer Diagnosis Lawyer Help Me?

Walking into your doctor’s office and being hit with the news that you are suffering from a disease or illness that has progressed because of a lack of detection is terrifying.

In spite of the fear and anxiety that you are probably experiencing, we want you to know that you do have the right to legal action.

Our experienced Albany delayed cancer diagnosis attorneys will advocate on your behalf to help you seek all compensation that you deserve. This includes seeking damages for your pain and suffering, your medical bills, your lost wages, and all other damages related to the act of suspected medical malpractice.

Please, do not wait to pick up the phone and contact the legal team at Powers & Santola, LLP. Our New York medical malpractice attorneys can meet with you right away to conduct a careful review of your case and help you to understand the options you may have for seeking recovery.

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