The answer is yes, you can hold the medical professional responsible. If you have cancer that has been allowed to spread and threaten your life because of medical negligence, you are entitled to file a medical malpractice lawsuit. However, it may surprise you to learn that this was not always the case. Until a couple of decades ago, your right to sue could expire before you even knew you had a case! How could something so unfair have been the law in Virginia?
In the past, the statute of limitations for medical malpractice claims began ticking from the moment the misdiagnosis occurred, regardless of when the patient discovered the error. This meant that many patients who suffered from delayed diagnoses, particularly in cases involving slow-developing conditions like cancer, were left without legal recourse by the time they realized the severity of their situation.
If a doctor failed to provide you with a correct diagnosis, an experienced medical malpractice lawyer can help.
Statute of limitations for medical misdiagnosis in Virginia
All claims for personal injury in Virginia, including medical malpractice cases, are subject to time limits, otherwise known as statutes of limitations. Although each case can be different, the general time limit for filing an injury lawsuit in Virginia is two years after the injury. If the lawsuit is not filed within those two years, the right to sue is lost forever. In an automobile injury case, it is easy to figure out when the two-year period begins to run because the negligence and the injury are simultaneous.
But when a doctor negligently misdiagnoses cancer or fails to communicate a diagnosis to a patient, the physical injury does not occur until sometime later, as the disease progresses. In such a case, the patient will be completely unaware of the disease and therefore unaware of its growth or spread. Nevertheless, that two-year time period is slipping away. Until recently, if more than two years had passed without the patient filing a lawsuit – even if the patient is unaware of the disease – the right to sue was lost forever.
Cancer misdiagnosis lawsuit
I once represented a woman in exactly that unfair situation. Five years before the case, she had had her uterus removed. Although the uterus contained cancer, she was told she was cancer-free and placed on estrogen replacement therapy. Five years later, she was diagnosed with recurrent uterine cancer. The five-year-old pathology slides from her uterus were reviewed, and she learned that she had had cancer all along, but had never been told. In fact, the estrogen she had been taking for five years had actually “fed” her cancer, and would never have been given to her if the diagnosis had been known.
Although I tried to make a claim for her, she died soon after and the claim could not survive a statute of limitations defense. Her right to sue had expired before she even knew she was sick. While injustice may be corrected in the courtroom, it may be prevented in the legislature.
After my client paid the ultimate price for physician negligence, I drafted a new law for cancer victims protecting their right to sue until one year AFTER they are informed of their illness. I am proud to say that the law passed both houses of the General Assembly without a single “no” vote at any stage of the process. In fact, when I explained the bill to one member of the House of Delegates, he was surprised and asked, “That’s not the law already?”
The law went into effect on July 1, 2008. As a medical malpractice lawyer at the Allen Law Firm, I am proud to represent victims of medical negligence in the courtrooms, the legislature, or anywhere their rights are at stake. Our firm is committed to representing the rights of individuals in the legislature as well as the courtroom.
Misdiagnosis considered medical malpractice
A medical misdiagnosis case is a type of medical malpractice claim in Virginia. Medical malpractice refers to any situation where a healthcare provider like a doctor fails to provide proper care, resulting in harm to the patient. Misdiagnosis falls under this umbrella, as it involves a failure to accurately diagnose a patient’s condition, leading to delayed or inappropriate medical treatment.
In Virginia, for a misdiagnosis to constitute medical malpractice, it must meet the same criteria as other types of malpractice claims:
- Duty of care: The healthcare provider must have had a duty to provide care to the patient.
- Breach of duty: The provider must have breached this duty by failing to meet the standard of care, which, in the case of misdiagnosis, means failing to accurately diagnose the patient’s condition.
- Causation: The misdiagnosis must have directly caused harm to the patient, such as allowing a condition to worsen or causing unnecessary treatments.
- Damages: The patient must have suffered actual damages, such as additional medical expenses, lost wages, pain and suffering, or reduced life expectancy.
While misdiagnosis is a type of medical malpractice case, it can be more challenging to prove than other malpractice claims due to the nature of the error. However, the legal process for pursuing a misdiagnosis claim in Virginia is the same as for other medical malpractice lawsuits, including requiring a certification of merit from a qualified medical expert.
Filing a medical malpractice case in Virginia: what you need to know
When pursuing a medical malpractice claim in Virginia, it’s important to understand the unique aspects of the state’s legal system. To prove medical malpractice, you must demonstrate that the healthcare provider breached the standard of care, causing you harm. This means showing that the provider’s actions deviated from what a reasonably prudent provider would have done under similar circumstances.
In Virginia, you must also obtain a “certification of merit” from a qualified medical expert before filing your lawsuit. This certificate serves as testimony that your case has merit and that the expert believes the healthcare provider breached the standard of care.
Misdiagnosis claims, in particular, can be challenging to prove. Unlike other types of medical malpractice, such as surgical errors or medication mistakes, misdiagnosis often involves a failure to act rather than a specific action. To succeed in a misdiagnosis claim, you must show that the provider failed to diagnose your condition accurately and that this failure caused you harm.
For example, if a doctor fails to order appropriate tests or misinterprets test results, leading to a delayed cancer diagnosis, you may have grounds for a misdiagnosis claim. However, you must also prove that the delay in diagnosis caused your medical condition to worsen and that earlier detection could have led to a better outcome.
In addition to the challenges of proving misdiagnosis, Virginia also has strict time limits for filing medical malpractice claims. As discussed earlier, the discovery rule has helped extend these time limits in some cases, but it’s still crucial to act quickly if you suspect medical negligence.
The role of an experienced personal injury lawyer in misdiagnosis claims
A malpractice lawyer will gather and analyze evidence to support your claim. This evidence may include medical records, test results, and expert witness testimony. Your lawyer will review your medical history to identify instances where there was a failure to meet the standard of care.
This may include misinterpreting test results, incorrect diagnosis, missed diagnosis, diagnostic errors, or failing to order appropriate diagnostic tests resulting in delayed diagnosis. They will also consult with medical experts to obtain the required certification of merit and to provide testimony supporting your claim.
In addition to gathering evidence, your malpractice lawyer will communicate with the healthcare professionals’ legal team and insurance company. They will negotiate on your behalf to seek a fair settlement, and if necessary, represent you in court in a medical malpractice lawsuit. Having an experienced advocate on your side can help level the playing field and ensure your rights are protected.
Contact Allen & Allen if a misdiagnosis caused harm
If you believe you have a misdiagnosis claim or any other medical malpractice case in Virginia, consult with an experienced medical malpractice attorney as soon as possible. Your lawyer can guide you through the process and help you understand your legal options.
The attorneys at Allen & Allen have a proven track record of fighting for patients’ rights and securing just compensation for their clients. Our work was instrumental in changing Virginia’s statute of limitations for medical malpractice cases, giving patients a fair chance to seek justice. Medical misdiagnosis is a critical failure of the doctor-patient relationship. We take your case seriously.
Contact Allen & Allen today to schedule a free consultation with our legal team. We’ll listen to your story, assess your case, and guide you through the legal process, fighting to help you obtain the compensation you deserve. Call us at 866-957-4230 or fill out our online contact form to schedule a consultation.
