Can ER be sued for misdiagnosis? 14 Answers as of April 11, 2016

Had an X-ray taken - was told I had an elbow sprain with nothing broken. 3 weeks later after much pain - X-ray at ortho confirms that humerus shear fracture. Requiring surgery and screws.

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Walpole Law | Robert J. Walpole
Medical malpractice cases are extremely hard to win. One reason is in proving that the provider caused harm that would not have resulted if the negligence had not happened. That may seem confusing, but look at your situation. Let's assume misdiagnosis did occur. The questions is did that misdiagnosis cause the harm that you eventually had to endure, ie. the extra pain and surgery with screws? Generally, the answer is mixed. Under most circumstances, you would have had to have the surgery anyway unless you could prove your condition worsened in the ensuing thee weeks. That would be hard to prove. Yes, you did endure extra pain, but in malpractice law that is not worth much. Sorry. You still might discuss this with an attorney/ Good luck.
Answer Applies to: Oklahoma
Replied: 4/11/2016
The Law Offices of Russell Gregory, P.C.
The Law Offices of Russell Gregory, P.C. | Russell Gregory
It depends upon how much worse off you are for the delay in diagnosis. Has any medical person said that you're prognosis for a full recovery is worse than had the diagnosis been made and the surgery undertaken promptly?
Answer Applies to: Michigan
Replied: 3/28/2016
Law Ofices of Edwin K. Niles | Edwin K. Niles
Of course you can sue. However (thanks to the doctor lobby) Med (and Dental) Mal cases are quite difficult. First, one must obtain a certification from an independent doctor that there was negligence. This is where the claim usually stops, as most lawyers will expect the client to cover the costs of this review/report (up to $5,000). Next, most malpractice insurance policies have a provision for approval of any settlement by the insured doctor. That doctor, human nature being what it is, will often refuse to approve any settlement, as he doesn't think he did anything wrong. Finally, there is a cap on how much can be awarded for pain and suffering, thus making these cases unattractive to lawyers. There are lawyers who specialize in Med Mal; your local bar association may be able to refer you to one.
Answer Applies to: California
Replied: 3/25/2016
S. Joseph Schramm | Joseph Schramm
Although you probably could file a suit against the ER and the persons responsible for the X-ray analysis you should speak with an attorney handles medical negligence cases to see if the damages involved would be sufficiently great to justify the time, effort and expense they might have to expend in prosecuting such an action. It might be that the attorney would feel that the damages involved would be, at best, too small to warrant the filing of a suit.
Answer Applies to: Pennsylvania
Replied: 3/25/2016
Musilli Brennan Associates PLLC
Musilli Brennan Associates PLLC | John F Brennan
Perhaps, but it is a difficult case and I suspect your damages are limited. You should consult with an attorney as you did suffer pain and suffering and there may be medical complications cased by the delay.
Answer Applies to: Michigan
Replied: 3/23/2016
    Law Offices of George H. Shers | George H. Shers
    Sure it can, but it probably is not worth while. You might be able to collect pain and suffering for the three week delay in treatment and the ortho exam and any increase in permanent disability caused by the delay [probably none], but you would need to hire a physician to state it was a misdiagnosis and that would cost several thousands, more than the case is likely worth.
    Answer Applies to: California
    Replied: 3/23/2016
    Candiano Law Office
    Candiano Law Office | Charles J. Candiano
    You would have to prove that: 1. The x-rays taken at the emergency room were read improperly; AND 2. the failure to diagnose the injury in the emergency room caused you to suffer a worse outcome, after all appropriate medical care was rendered. Then and only then would you have any viable claim. The best and easiest place to start would be to ask your orthopedic surgeon whether the break was clearly visible on the imaging performed in the ER. If the orthopedic surgeon tells you that it was clearly visible AND the failure to diagnose resulted in a worse outcome, consult a local medical malpractice attorney.
    Answer Applies to: Illinois
    Replied: 3/23/2016
    Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
    Possibly. But what are your damages from the misdiagnosis and the delay. Also please keep in mind that judges and juries think of Emergency Departments as they are portrayed on TVas chaotic places requiring instant decisions. In other words, it' hard to sue a hospital over this kind of thing. Consult a local personal injury lawyer and see if he or she thinks you have a case worth bringing. My guess is they will not think so.
    Answer Applies to: Wisconsin
    Replied: 3/23/2016
    Ty Wilson Law | Ty Wilson
    You will want to reach out to an attorney who specializes in medical mal-practice. With what was titled "Tort Reform" which was passed by the Georgia Legislature, emergency rooms were provided immunity from certain types of mal-practice claims. I am sorry you suffered what sounds like a very painful injury and had to deal with it longer than necessary due to the mis-diagnosis. I wish you luck moving forward.
    Answer Applies to: Georgia
    Replied: 3/23/2016
    Stephens Gourley & Bywater | David A. Stephens
    Yes it can be sued.
    Answer Applies to: Nevada
    Replied: 3/23/2016
    Barry Rabovsky & Associates
    Barry Rabovsky & Associates | Barry Rabovsky
    Were you able to find out what the result of the delay in proper diagnosis may have done to your situation? It would be helpful to know whether the surgery and screws could have been avoided if you had received a proper diagnosis at the emergency room.
    Answer Applies to: Illinois
    Replied: 3/23/2016
    Gates' Law, PLLC | Thomas E. Gates
    Not likely to prevail if they took the normal course of examination when you can in. Further use could have opened the fracture that was not seen on the initial x-rays.
    Answer Applies to: Washington
    Replied: 3/23/2016
    Law Offices of Ronald A. Steinberg & Associates | Ronald A. Steinberg, BA, MA, JD
    A radiologist would have to review the actual xrays to determine if the fracture was visible. Injuries like that produce a lot of swelling, and sometimes the swelling is sufficient to keep the bone fragments too close for an xray to pass through the gap. So the short answer is, that until a radiologist actually reads the xray to determine the visibility, no one can give you a valid answer. Even though in many cases, and xray technician can read the xrays, every hospital has to have a board certified radiologist read each xray and sign off on it. That is why you will need a radiologist to check out the xray personally.
    Answer Applies to: Michigan
    Replied: 3/23/2016
    Bulman Law Associates PLLC Injury Law Firm
    Bulman Law Associates PLLC Injury Law Firm | Thomas Bulman
    Because you found the correct diagnosis and treatment, your permanent damages are not great enough to support three years of litigation and the risk of a defense verdict from a jury. The defense would also blame you for waiting three weeks to seek followup. It is unusual that the first xray was misread. You should consider getting your medical records from the hospital which would contain the radiologist's report.
    Answer Applies to: Montana
    Replied: 3/23/2016
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