Can I sue if my daughter was misdiagnosed at an ER without a doctor ever performing an exam?

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Can I sue if my daughter was misdiagnosed at an ER without a doctor ever performing an exam?

About a month ago I took my 3 year old daughter to an ER where they did a urine test for a UTI. The test came back clean so without even examining her they diagnosed her with a yeast infection. And when I say never examined her, no doctor ever touched her. They told us to give her a topical cream. After a few days of not improving we took her to an urgent care where she was diagnosed as being constipated and backed right up. We were told that if the ER doctor had bothered to examine her she would have been diagnosed properly and would have been treated sooner. I contacted the ER and was told that after reviewing her chart they came to the conclusion that she had received appropriated treatment.

Asked on September 29, 2014 under Malpractice Law, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).

Prior to filing a lawsuit for negligence against the ER doctor and the hospital on behalf of your daughter, it may be possible to settle the case with the malpractice insurance carrier for the doctor and the insurance carrier for the hospital.

Your daughter's claim filed with those insurance carriers should include the ER bill and the bill from Urgent Care and the medical reports; especially the medical report from Urgent Care.

Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of your daughter's condition and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.

If the case is settled with the insurance carriers for the ER doctor and the hospital, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the insurance carriers, reject the settlement offers and file a lawsuit for negligence on behalf of your daughter against the ER doctor and hospital.  If the case settled with one, but not both parties (ER dpctor and hospital), only name the party with whom the case has NOT settled as a defendant in your lawsuit.  You will need to be appointed guardian ad litem to file a lawsuit on behalf of your daughter because she is a minor.

If the case is NOT settled with the insurance carriers for both parties, the lawsuit for negligence on behalf of your daughter must be filed prior to the expiration of the applicable statute of limitations or your daughter will lose her rights forever in the matter.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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