Is it medical malpractice if a doctor misdiagnoses a seizure disorder which allows more seizures to occur and should have easily been diagnosed?

UPDATED: Oct 1, 2022

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Is it medical malpractice if a doctor misdiagnoses a seizure disorder which allows more seizures to occur and should have easily been diagnosed?

My son was diagnosed at the age of 4 with epilepsy and immediately medicated. The medication controlled his seizures 100%. A few years later he was taken off meds. About 5 years after that, he began complaining of deja vu and other symptoms leading me to believe he was having seizures again. Unfortunately, it was happening mostly at school and no one in the family had witnessed any new seizures, however I made him an appointment anyway to have him checked out seeing that he had a history of seizures. Before his scheduled EEG, he had a seizure at the kitchen table witnessed by my other 2 children, his stepfather and myself. His father thought he was faking it for attention and even after we had finally witnessed one, prior to my son’s appointment he emailed the doctor telling him that my son was faking it and that I was encouraging it because I had epilepsy and wanted that bond with him. So on the day of the scheduled EEG, the doctor told me about the email in the hallway while my child was having the EEG done. At the conclusion, he said

that there is some seizure type activity showing but that that could happen to anyone with sleep deprivation this was a sleep deprived EEG. He said that instead of seizures he thought that he was having migraines and was confused, so her ordered my son to see a mental health therapist. Then, 2 weeks later, my son had a tonic-clonic seizure. Followed by a second one only 20 minutes later. We rushed him to the hospital where he had another seizure witnessed by the hospital staff. I refused to see the same doctor and instead got his nurse practitioner who immediately diagnosed epilepsy and put him back on medication. Does the further unnecessary seizures, which I believe are due to the doctor not giving him the proper care because he instead listened to an email from my son’s father, qualify for injury caused by malpractice?

Asked on June 9, 2019 under Malpractice Law, Utah


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

It may be malpractice, but that depends if, under all the circumstances (not just the email, but the fact that your son evidently was seizure free for 5 years) the doctor's diagnosis was unreasonable. It's not enough that it was wrong; you have to be able to, with expert medical testimony, essentially show that no competent, reasonable doctor would have come to that doctor's diagnosis. Do you have any expert opinions yet that the doctor's diagnosis, when it was made, based on what he knew at the time, was unreasonable? That's what you'd need to show malpractice.
Furthermore, even if it was malpractice, you can only sue for the harm done by that malpractice--e.g. the harm and costs provably caused by the additional seizures your son suffered after the misdiagnosis. If your son's death was due to a change in medication, not the misdiagnosis, that you cannot include his death in a diagnosis-related malpractice claim.

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