Legal Rights When Misdiagnosis Has Left You Scarred You do have legal rights when a doctor’s misdiagnosis caused you harm. Unfortunately, misdiagnosis cannot only lead to harm, but can lead to a loss of life and subsequent loss of income. If you have been the victim of a misdiagnosis you can take legal steps to claim compensation from the medical practitioner and or medical institute where you have been diagnosed.
When is it negligence?
You need to understand that a medical accident or acknowledged complications are different from medical malpractice or negligence. When you for instance, undergo surgery there are always some
risks involved. If the injury is caused by complications which could not have been avoided, you cannot claim for negligence. If a doctor has followed all the right procedures in diagnosing you and still made the wrong diagnosis, all the factors involved have to be considered before one can say that the doctor was guilty of medical negligence. Acknowledged complications may occur. You, however, shouldn’t have to pay or suffer because of their mistakes and this why it’s important to know your legal rights when misdiagnosis has left you scarred.
What can you do?
You can take the issue up with the Health Professions Council of South Africa, but should know that they do not facilitate the pay-out of claims. For such, you will need to take legal action and will need experienced medical law attorneys to assist. You only have a three year time period to claim.
Get a copy of your medical records from the doctor who treated you. You may need lawyer assistance in obtaining the records and should speak to our attorneys regarding the right procedure
to follow. Also write down everything you can remember including:
- Dates of visits – duration of examination.
- Witnesses – where applicable and their contact information.
- Medical aid bills and records regarding the treatments.
- Doctor or medical bills.
- Prescription records from the pharmacy (may need legal assistance).
- If you still have the prescription medication bottles keep them.
Make an appointment with our legal team to discuss the matter. We will help you determine the merits of the case. It’s important to get the correct medical treatment as soon as possible and to also get a second and even third medical opinion.
Costs and duration
Our attorneys will explain the procedures and, where possible, will help you avoid costly court proceedings. We will also discuss the costs involved, risks, and timeframe. Indeed, we will determine the merits of your claim and provide legal advice as to what to do next. It’s essential to take the necessary legal steps as soon as possible if you suspect that your injury is the result of a misdiagnosis as there’s a limited period in which you can take legal action.
No Medical Harm – No Medical Negligence
Doctors must make calls every day. Sometimes those calls are not what others in the medical profession would consider standard practice. If, as a patient, you didn’t suffer from a medical practitioner’s actions or lack of actions, then there is no medical negligence. A doctor could incorrectly diagnose someone, but if it didn’t result in any injury or medical side effects, then there are no grounds for medical negligence.
Actions Or Omission Of Actions
To claim for medical malpractice, the injury suffered must be the direct result of the actions or omission of actions of the medical professional. This includes things such as a misdiagnosis, wrong procedure followed, poor timing or anything that causes the patient to suffer in any way, be it physically or medically. South African medical law stipulates that the injury suffered must be due to the direct result of the medical practitioner’s actions or lack thereof. If, however, the practitioner followed the correct procedures and still the patient suffers with unfavorable consequences, then medical negligence cannot be claimed.
Reasonable Standard Of Care Not Followed
To claim medical negligence, one needs to prove that the treatment received was not considered as the reasonable standard of care. Medical experts, therefore, need to prove that an action or lack of an action was not considered to be a reasonable standard of care by a medical practitioner in a specific case, for a medical negligence claim to be granted. It is very difficult to prove because the treatment received must be measured against what is expected as reasonable standard of care, which is why a specialist is called to assist and not a general practitioner.
Not A Third Party
The doctor has to be directly responsible for the medical care of the patient, which means that there has to be a doctor-patient relationship to make a claim. A doctor cannot he held liable for harm suffered if he or she wasn’t directly responsible for the medical care of the patient.
So to sum it up; according to South African law, in order for a medical negligence claim to be made, the medical practitioner needed to be responsible for the patient’s direct care. Then it needs to be proved, with the assistance of a medical specialist that the course of action taken, or not taken, was not in accordance with the generally accepted medical procedures. This decision potentially could have been the cause of the patient’s injury or resultant medical side effects.