Did My Doctor Make a Mistake?

Use these links to jump to different sections:

• Proving a Misdiagnosis or Delayed Diagnosis
• Establishing a Medical Mistake Isn’t Enough

A 40-year-old woman goes in for a routine mammogram, and is eventually told she has an aggressive form of cancer; both breasts need to be removed. They are, immediately, and as she’s leaving the hospital, the doctors tell her they had mixed up her pathology results with another patient’s. They had removed her breasts in error.

“Incidents like this happens all the time,” says medical malpractice attorney Chris Messerly. “But most hospitals don’t want the public to know about their med-mal cases, and so they tell families that they won’t settle unless they agree to confidentiality. So, the family is between a rock and a hard place—either risking it at trial, or accepting that confidentiality.”

Messerly adds that patients win about 10 percent of all malpractice cases in Minnesota. In order to evaluate the viability of a medical error claim, you must weigh all kinds of factors. “A good case of negligence must be present,” says Messerly. “You have to prove that the healthcare provider deviated from the standard of care. You also have to prove separately that that screw-up caused the harm.

Proving a Misdiagnosis or Delayed Diagnosis

“For example,” he continues, “with a cancer diagnosis, you will have to prove that the delay caused by the screw up caused detrimental harm to the patient, or that the difference in a diagnosis would have prevented the harm from occurring. Often, a hospital will admit they screwed up, but will say that the person would have died or been caused harm regardless of that mistake.”

The value of a case must also be significant enough to justify the process. These cases are exceedingly expensive to pursue; sometimes just getting medical records can cost $20,000. Then there are costs of paying experts.

“We take probably three percent of the cases that come to us,” says Messerly. “They are hard on families, juries are fairly conservative in Minnesota, and the ‘standard of care’ is broad.”

Establishing a Medical Mistake Isn’t Enough

Messerly says medical facilities and health care professionals don’t need to be perfect; they just have to act within the standard of care.

For example, say you break your wrist and seek care. The first doctor tells you she’s going to cast your arm and let it heal. The second tells you that you need surgery, and he’s going to put a plate and some screws in your wrist. Both of these routes may be perfectly acceptable, or one may have disastrous consequences.

“Just because there has been harm doesn’t mean that anyone is at fault,” says Messerly. “It’s only doctors who judge the standard of care, not lawyers.”

In the end, many of these medical malpractice cases really can change things for the better: “We want to do right by the people who call us, many of whom have had a negative medical experience,” says Messerly. “We don’t want to compound their misery through the legal process.”

If you think you have a medical malpractice claim, it’s best to consult with a reputable and experienced attorney. If you’d like more general information about this area of personal injury law, see our medical malpractice law overview.