What is my legal recourse regarding repeated misdiagnoses?

UPDATED: Sep 30, 2022

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What is my legal recourse regarding repeated misdiagnoses?

I went to the ER with extreme hives from my legs covering my stomach and back up to my neck. I was told that my condition was a non-emergency and sent home. I went home but the next morning my face was swollen. I called an ambulance that brought me to the ER. The doctor shot me with medicine then sent me home. The next day my throat started swelling, so I went to another ER where they gave me more shots and sent me home. About a week later, I went to a clinic. Although the hives were gone, my head was in a lot of pain. I thought that I had spinal meningitis. The clinic referred me to the ER. After a cat-scan the doctor said that I had an aneurism so they would have to airlift me to a facility. The neurologist from there told the ER doctor to give me a C-block shot before he put me on the helicopter. The ER doctor did not know what it was so he didn’t give it to me. Then when I got off the helicopter the neurologist did another cat-scan and said the ER doctor was wrong I have blood clots on my brain. Would these events be suiable?

Asked on November 27, 2016 under Malpractice Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Misdiagnoses can definitely be a grounds for  malpractice, if the misdiagnosis was not reasonable: that is, if under the facts, symptons, etc., it could have readily been A or B and a doctor said it was condition A when in fact it was B, that's not necessarily malpractice: the doctor made a reasonable call that happened to be wrong, but the law does not require doctors to be perfect--just that do what is expected of them and use reasonably good judgment. 
If the diagnosis was not reasonable, however, and a doctor said A when he should have said B...or the symptoms would have made a reasonably careful doctor order additional tests to verify what the condition was, but this doctor did not...then that may be malpractice.
But whether it was malpractice or not is just part of the equation: there also must be some harm that the misdiagnosis caused, since in the law, you are only entitled to compenation for the actual injury caused, or actual costs (e.g. additional medical costs) you incurred, due to the malpractice. And furthermore: malpractice cases tend to be expensive, since you *must* hire a doctor or other medical expert to examine you, write a report, testify, etc., and probably should hire a lawyer, too. So if you suffered only slight harm or incurred only minor additional costs, you could spend as much or more on the case as you'll get back. 
If you did not suffer additional harm or incur large additional costs due to this failure to diagnose you right away, then there's likely no point in suing--you'd not get enough compensation as to justify it. But if you were harmed or now have large additional medical expenses due to the incorrect diagnoses, consult with a medical malpractice attorney about possibly bringing a case. (Many such attorneys provide a free initial consultation to evaluate a case; you can ask about this before making the appointment.) Good luck.

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