What You Must Know Before Filing a Medical Malpractice Lawsuit

find aa personal injury lawyersMore Americans are filing medical malpractice suits in the US — but not because doctors are doing a worse job. In fact, they’re doing roughly the same quality job. However, consumers today are more savvy and informed about how to find a malpractice lawyer and file a lawsuit. That puts more and more doctors on edge. With that in mind, there are a few important aspects you must know before filing a medical malpractice lawsuit.

Are You Filing a Suit For Negligence?

Just because a doctor made a mistake on a medical exam, or misdiagnosed you, doesn’t mean that he was negligent. He could have honestly thought that a diagnosis was correct, or made a simple error. After all, even skilled doctors make mistakes.

Differential diagnostics isn’t an exact science. Mistakes can also be made quite often based on incomplete information. But a misdiagnosis means that the doctor did not include the correct diagnosis on the differential list where another doctor under similar circumstances would have. Negligence can also be found if the doctor included the correct diagnosis on the differential list but he or she failed to do appropriate tests — or seek out a second opinion — to confirm the diagnosis.

If neither of these circumstances are true, it’s difficult to find negligence in a lawsuit.

Was There A Diagnostic Test Error?

Errors in diagnostic testing are not uncommon, and when a doctor fails to find anything on a test, it’s easy to dismiss patient concerns and say that a negative is really a negative result, even when the patient still complains of symptoms that indicate the test is a false negative.

Some diagnostic tests are not exclusive; rather, they’re only inclusive, which means they will find a positive if it exists, but if they don’t find that positive it doesn’t mean that the patient isn’t positive for some illness or dysfunction.

To prove an error in diagnostic testing, you must prove that the diagnostic equipment was faulty and/or that human error occurred. So, for example, if the lab contaminates your specimen or sample, this would constitute a diagnostic error. If you had a personal injury and a technician missed something in an x-ray or MRI, this would be human error.

Were You Directly Harmed Because Of A Misdiagnosis?

If there is a misdiagnosis that results in harm to you, you may be able to sue based on that harm. You must prove that the doctor’s negligent misdiagnosis or a delay in diagnosis was the direct cause of your injury and that the injury you suffered was beyond what would normally have occurred if you received the correct diagnosis in time.

In some cases, patients can show harm even when a doctor treats the condition. For example, say your doctor misses a cancerous tumor, only to find and treat it later. You may think that you have no case.

But, with some cancers, there is an increased risk of recurrence if you don’t catch it soon enough — this is cause for a lawsuit because the delay in diagnosis is essentially a misdiagnosis. Most lawyers will take on this type of case. But you have to prove that there was harm as a result of the delay.

The Statutes Of Limitations In Nevada

Another aspect you must know before filing a medical malpractice lawsuit is that most states have a statute of limitation. This means that there is a time limit on your ability to file suit. If you don’t do it within the prescribed time-frame, then you’re out of luck. That is, you can’t file.

In Nevada, you have three years to file suit after an injury or death, or one year after discovery of an injury, whichever comes first. So always seek sound advice from a personal injury lawyer about your case as soon as possible. No matter where you live.

By the way, there ice one exception to the statute of limitations. If a doctor or hospital conceals their malpractice and prevents it from being discovered by you, then the statute of limitations is “tolled” for as long as the concealment of the alleged malpractice continues. In other words, the clock stops running until you’re able to file suit.


About the Author: Edward M. Bernstein, Esq. is one of the most recognizable figures in Nevada and one of the state’s premier personal injury attorneys. He has also served as an alternate judge for the City of Las Vegas Municipal Court. In 2000, he was Nevada’s Democratic nominee for the United States Senate.

Photo Credit: Injury Lawyers San Luis Obispo

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