A Guide to Claiming Medical Misdiagnosis Compensation
If your life, or the life of a loved one, has been affected by a misdiagnosis we can help.
The purpose of this guide is to help anyone who has suffered a misdiagnosis and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.
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.
Do I have a misdiagnosis claim?
Medical negligence claims differ from personal injury claims as the following will need to be established:
- there was a breach of duty ("negligence" or "fault"); and
- the breach of duty was the cause of your injury, damage or loss ("causation" or "avoidable harm").
Breach of Duty
A breach of duty means that the standard of care you received was below the standard that could reasonably be expected of a competent healthcare professional.
To establish causation, it will need to be demonstrated that the injury you suffered resulted from the negligent care rather than the underlying condition.
Get an impartial opinion
To get impartial advice on whether you have a claim, speak to a misdiagnosis claim expert on 0800 612 7456.
A brief phone consultation will tell you exactly where you stand. There is no obligation to start a claim.
You can also find out if you have a claim with our Online Claim Checker.
Is compensation always payable?
If an error occurred during treatment and the patient was harmed as a result, this may be referred to as an "undesirable outcome".
Not all treatment that results in an undesirable outcome will result in the payment of compensation.
Sometimes an undesirable outcome is due to a known risk associated with the treatment, or due to a mistake that a doctor could reasonably have made in the circumstances.
How long do I have to start a claim?
If your injury is apparent immediately after medical treatment, you will have 3 years to start a claim.
It may be that the negligent procedure happened more than 3 years ago, but your injury was only diagnosed recently, within the last 3 years. If so, you may still be able to make a claim.
What if your injury was diagnosed months or years after treatment?
You may not be immediately aware of your injury. In some cases, months and even years can pass before symptoms appear.
The law allows you to make a medical negligence claim up to three years after the 'date of knowledge' (when you first learned of the injury).
It is recommended that you start a claim as soon as possible, as medical negligence cases can be complex. Starting your claim sooner will give your solicitor more time to gather medical evidence, assess the extent of your injury and to negotiate interim payments and your final compensation amount.
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.
Claiming for an incorrect diagnosis
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.
Claiming for a 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?
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.
The amount of money you could claim for your misdiagnosis will depend on:
- the extent of your injury, and
- any financial losses or costs you have incurred.
At the start of your claim, your solicitor will consider the many ways your misdiagnosis has affected your life. Your solicitor will take all of these effects into account to calculate the correct compensation award for you.
This calculation will factor in 'general damages' and 'special damages'.
General damages are awarded for pain, suffering and loss of amenity (PSLA).
Awards for general damages are set by the Judicial College and published in their guidelines for personal injury awards.
Special damages are for financial losses and expenses you have incurred as a result of the accident.
What can I claim for after a misdiagnosis? (see list)
Examples of special damages (losses you can claim for) include:
- Lost earnings (including future earnings)
- Medical treatment costs
- Travel costs
- Costs of care
- Costs of adapting your home or car
What is the average injury compensation for a misdiagnosis claim?
The Judicial College injury tables give a approximate idea of the ranges awarded for different injuries.
However, the money you would receive following a misdiagnosis will depend entirely on your specific circumstances.
Your misdiagnosis compensation will be calculated based on the unique impact your injuries have had on your life, your ability to work, and the actual financial losses you have incurred as a result of your injuries.
See the injury table above for some examples.
Calculating how much compensation you can claim for a misdiagnosis injury can be complicated.
Our injury compensation calculator tells you if you may have a claim, how much compensation you could claim, and what you can claim for.
Find out what your misdiagnosis claim could be worth now:
How long does a misdiagnosis claim take?
How long it can take to secure compensation for a misdiagnosis can vary considerably.
For instance, a straightforward liability accepted medical negligence claim can settle in 12 to 24 months. However, if the case is contested or there is a serious or complex ongoing injury, a claim can take longer. Typically, a medical negligence claim takes 12 to 36 months. For more information, see:How long will my claim take?
Will I still be able to claim for a misdiagnosis after the law changes in April 2020?
The law relating to personal injury claims is changing in April 2020.
You will no longer be able to claim no win, no fee compensation using a solicitor for lower value claims (under £5,000).
In addition, compensation for whiplash and other soft-tissue injuries will be reduced.
Caring and sensitive support
Your solicitor will handle your misdiagnosis claim from the initial consultation through to the financial settlement. In addition, your solicitor will work with other specialists to help you with:
- Financial support: interim payments while you are unable to work.
- Advice: on personal injury trusts, tax and welfare benefits.
- Coordination: with rehabilitation providers and therapists.
- Access: to treatment and therapies not always available on the NHS.
How does no win, no fee work?
No win, no fee takes the risk out of making a misdiagnosis claim. If you don't win any compensation, you won't have to pay your solicitor any legal fees.
No win, no fee promise
If you have been injured through no fault of your own, our no win, no fee guarantee takes the risk out of claiming compensation for your misdiagnosis injury.
What do I pay if I win my misdiagnosis claim?
Your injury solicitor will receive a success fee which is deducted from your compensation, only after your compensation is awarded. The solicitor's success fee can be up to 25%. You and your solicitor can agree the success fee before you start your claim.
What do I pay if I do not win my misdiagnosis claim?
If your misdiagnosis claim is not successful then you do not have to pay any legal fees whatsoever. Your solicitor may take out insurance to ensure there will be nothing to pay.
How do personal injury solicitors get paid?
If your misdiagnosis claim is successful, the defendant, or their insurer, will pay the compensation and your solicitors fees.
Can I get Legal Aid?
Legal aid is no longer available when making a personal injury claim, but a Conditional Fee Agreement (No Win, No Fee) can reduce the financial risks of making a claim.
How can Quittance help?
Your solicitor will fight for the best possible compensation settlement for you, the highly-experienced panel of solicitors have an excellent track record of winning medical negligence claims.
If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.
Call us FREE 0800 612 7456 or arrange a callback:
if you can claim
to start a claim
Can I claim for someone else?
Yes. In certain circumstances, it is possible to claim compensation on behalf of another person in the capacity of a 'litigation friend'.
If an injured person is either too young or vulnerable, too injured or otherwise unable to claim on their own behalf, their litigation friend can handle the claim process on behalf of the injured person.
The litigation friend will be responsible for communicating with the solicitors, and for making decisions in respect of the claim.
Will I have to go to court?
Highly unlikely. The vast majority of claims that are settled by the solicitor panel are settled out of court.
Only a very small percentage (approx. 5%) of personal injury claims go to court. Generally, only very complex cases, or those where liability cannot be resolved, end up in court.
Cases that do ultimately go to court are held in front of a judge, not a jury.
Will I have to go to a solicitor's office?
No. You will not need visit a solicitor's office. As with most professional services, it is no longer necessary to meet face to face with your solicitor. Personal injury claims are dealt with via email, post and telephone.
Should you need to have a medical, this will be arranged at a medical centre near you or at your GP's surgery.
Can I get an early compensation payment?
If you suffer financial hardship as a result of an injury, you may be able to claim an interim compensation payment.
An interim payment is a partial settlement of your claim which is paid before your claim is concluded. The amount you receive in interim payments would then be deducted from your final compensation settlement or award.
About the author
Howard qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.
Read more about this Quittance Legal Expert