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Paul Carvis

Panel Personal Injury Solicitor

A guide to making a No Win No Fee misdiagnosis claim

In 2014, the NHS paid out £194 million in compensation to 1,302 patients or families for medical conditions that were either not identified or detected too late. Around one in ten of those payouts went to patients whose cancer had been misdiagnosed.

Misdiagnosis is the basis of one of the most common types of clinical and medical negligence compensation claim. Three categories of medical misdiagnosis are identified: total misdiagnosis, incorrect diagnosis and late diagnosis.

Claims for total misdiagnosis

Total or missed misdiagnosis occurs when a medical professional fails to identify the symptoms of a health condition or illness. Without crucial treatment, the condition may develop to a more advanced stage, impacting the patient's treatment, prognosis and recovery time.

Claims for incorrect misdiagnosis

Incorrect diagnosis occurs when a medical professional wrongly diagnoses an illness or condition, which may cause the patient to undergo an unnecessary medical procedure. For example, a patient wrongly diagnosed with cancer may receive needless chemotherapy or have an organ or tissue removed.

Other problems may arise when patients are given the incorrect diagnosis. If their true condition is allowed to progress unchecked, the patient may require more invasive treatment when the condition is eventually uncovered. Some patients may also experience a severe psychological reaction to the mistaken belief that they have a serious illness.

Claims for late diagnosis

Late diagnosis, also known as delayed diagnosis, occurs when opportunities for diagnosis are missed and the medical professional only realises the true nature of an illness or condition when it is at an advanced stage. Mistakes of this kind can increase the pain and discomfort of the patient, prolong the recovery period and in serious cases, reduce the patient's life expectancy.  

Why does medical misdiagnosis occur?

Misdiagnosis occurs for a number of reasons, including:

  • Healthcare professionals failing to adequately investigate the symptoms of serious illness 
  • Doctors failing to perform the correct tests
  • GP negligence
  • The GP having inadequate expertise with a particular type of healthcare condition
  • Errors by junior medical staff due to a lack of supervision
  • Misinterpretation of test results such as CT scans, MRI scans, X-rays, biopsies, smears and tissue samples.

Compensation awards are calculated by reference to the injuries that are sustained and the impact these injuries have had on a Claimant's life, rather than the context or cause of the medical misdiagnosis.

For the purposes of a misdiagnosis claim, however, the reason for the misdiagnosis does matter. It must be shown that the misdiagnosis caused or exacerbated the patient's illness or condition, and that the misdiagnosis itself occurred as a result of the healthcare professional's act or negligence.

Who can make a claim?

Any person who has experienced more pain and suffering than would have been caused by their illness if it had been treated correctly, as a result of a medical professional's misdiagnosis, may be eligible to claim compensation.

Precise time limits are place for making a misdiagnosis compensation claim. A claim must be made within three years of either the date the misdiagnosis occurred, or the date a link is discovered between the misdiagnosis and the patient's injuries or worsening health condition.

Some Claimants may experience a significant delay between the time they first see their doctor and the time that the symptoms of the medical misdiagnosis begin to make themselves felt. 

Who can you make a misdiagnosis claim against?

Claims are usually brought against a hospital or GP surgery.

For treatment and consultation carried out in an NHS hospital, the Defendant is the relevant NHS Trust. In the case of a private consultant, the claim usually is brought against the consultant personally and his or her insurance company. 

Is the medical professional liable for a medical misdiagnosis?

To successfully pursue a claim for medical misdiagnosis, the Claimant's solicitor will need to establish breach of duty on the part of the healthcare professional, also known as negligence. Negligence occurs when the standard of care received was below the standard that could reasonably be expected of a competent medical professional in the same field.

The Claimant's solicitor must also show that the treatment received (or lack of treatment) caused the Claimant further injury, pain or suffering. This is known as causation.

While undesirable, not all misdiagnosis claims will result in a payment of compensation. For example, a Court may not award compensation to a patient who received a late diagnosis but whose condition did not get any worse in the intervening period. In this scenario, there is no evidence that an earlier diagnosis would have changed the treatment options or led to a better outcome.

How much compensation can you claim for misdiagnosis?

Compensation awards vary from Claimant to Claimant depending on a wide-ranging set of circumstances and the severity of the injury they have sustained. Factors that may impact a misdiagnosis compensation award include:

  • The nature of the ongoing illness
  • The length of time the Claimant's recovery time was prolonged
  • The pain and suffering caused by the administration of improper medical treatment
  • Changes to life expectancy
  • The overall impact of the misdiagnosis on the Claimant's quality of life.

Claimants may seek "general damages" compensation for the pain, suffering and disability the medical misdiagnosis has caused. "Special damages" may also be sought for financial expenses such as loss of earnings, medication and treatment costs, personal care costs and travel expenses to and from hospital. Read more about "How much compensation can I claim?"

No Win, No Fee agreements with misdiagnosis claims

A No Win, No Fee injury claim effectively begins with a Claimant signing a Conditional Fee Agreement (or CFA) with their preferred lawyer.

A CFA sets out the work provided by the solicitor handling your case and a percentage-based "success fee" to be deducted from your total compensation if the claim is won.

With a Quittance personal injury solicitor, you have complete peace of mind knowing that there is nothing to pay at the outset.

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