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Suing a Doctor for Misdiagnosis

Suing a Doctor for Misdiagnosis

Misdiagnosis of an illness can have serious consequences for the patient. Not only can the patient end up being treated for the wrong disease, potentially at substantial cost and discomfort, but the real problem can go untreated and get worse. For example, a blocked artery misinterpreted as heartburn can leave the patient exposed to grave injury or death. In some circumstances, a misdiagnosis can be a form of professional malpractice for which compensation can be sought in the courts.

The key question is whether misdiagnosis is negligence

Under Nevada’s professional negligence laws, the central issue that a plaintiff must show in most cases is that his or her licensed health care provider, such as a physician or dentist, was negligent in performing professional services. Professional negligence is defined as a “failure . . . to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” NRS 41A.015. There are several elements of this definition that come into play in the context of a misdiagnosis:

  • Reasonableness. A doctor is only expected to apply a reasonable level of care, skill, or knowledge to treating patients. Whether a given approach was reasonable is evaluated, as much as possible, by objective standards. For example, a patient who complains of constant fatigue might reasonably be diagnosed with a sleep problem, even though she is also carrying an undiagnosed cancer. On the other hand, it might be unreasonable for a physician to fail to screen a patient for cancer if the patient exhibits a number of symptoms and risk factors.
  • Ordinary care. A doctor needn’t take every possible step to evaluating a condition. For example, perhaps it is not the customary process to order an MRI for an otherwise healthy twenty-something who presents all the usual symptoms of migraines, which could leave a brain tumor undetected. On the other hand, negligence may apply if the ordinary procedure in that situation is to order a precautionary MRI and the doctor fails to do so.
  • Comparison to other professionals. The defendant’s actions are measured according to his or her training and experience. This can have important consequences: a relatively junior professional may be evaluated differently than a seasoned expert, and a highly trained specialist will be treated differently than a generalist.

Technical barriers to recovery

A plaintiff in a professional negligence case must present a sworn affidavit by a professional who works in the same field as the defendant. NRS 41A.071. The affidavit must attest to each of the components of the definition of professional negligence. In other words, the plaintiff must find another doctor who is willing to give an opinion that the plaintiff’s doctor behaved negligently. In addition to the challenge of crafting an effective affidavit, this requirement can pose a practical challenge. For example, if the defendant works in a narrow specialty it may be difficult to find another doctor who is sympathetic to the plaintiff’s case and believes that the defendant didn’t act reasonably.

Anyone considering a medical malpractice suit in Nevada should bear in mind that state law requires such suits to be brought within three years of the cause of the injury, or one year from the discovery of the injury, whichever is earlier. NRS 41A.097(2). In medical malpractice cases Nevada limits a plaintiff’s noneconomic damages, such as for pain and suffering or emotional distress, to $350,000. NRS 41A.035.

GGRM is a Las Vegas personal injury law firm

The attorneys at the law firm of Greenman Goldberg Raby Martinez have broad experience with medical malpractice lawsuits. If you are suffering from the consequnces of a misdiagnosis and are wondering if you have a case, we are happy to talk you through your options. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.