Medical Negligence in Diagnosis Guide

What is Medical Negligence in Diagnosis?

Medical negligence in diagnosis is a significant form of medical malpractice that occurs when a physician or medical institution fails to diagnose a disease or medical condition in a timely manner, or provides a substantially incorrect diagnosis. This is one of the most complex areas of tort law, as it requires in-depth medical evidence, understanding of medical care standards, and the ability to prove causation between the omission and the resulting harm.

In Israel, the legal framework for medical negligence claims, such as misdiagnosis or delayed diagnosis, is based on general principles of tort law, taking into account medical regulations and international standards of medical care. Each case is examined individually, considering the unique circumstances, the physician's or institution's position at the time of decision, and the direct impact on the patient's health.

Negligence in diagnosis can cause delayed treatment, deterioration of a medical condition, significant physical injury, loss of earning capacity, physical and psychological suffering, and financial difficulties. For this reason, victims have the right to file a compensation claim against the physician, the medical institution, or both.

Types of Misdiagnosis and Delayed Diagnosis

Misdiagnosis and delayed diagnosis are two primary types of diagnostic negligence, although they sometimes overlap:

• Misdiagnosis: The physician diagnoses a different disease, or reaches an incorrect medical conclusion based on insufficient examination, error in reading test results, or disregard of clear clinical signs. Example: diagnosing back pain as a herniated disc when the condition is actually a malignant tumor.
• Delayed Diagnosis: The physician does diagnose the disease, but only after a significant delay that led to deterioration of the patient's condition, reduced chances of recovery, or increased harm. Example: failure to diagnose diabetes for years, resulting in serious cardiac complications.
• Incomplete Diagnosis: The physician diagnoses part of the disease or symptoms, but for some reason does not examine the body thoroughly or does not order necessary additional tests.

Conditions for Proving Medical Negligence in Diagnosis

To succeed in a medical malpractice claim due to misdiagnosis or delayed diagnosis, you must prove several legal and clinical elements:

• Legal relationship between the physician/institution and the patient: The physician or institution was responsible for treating you or performing the examination.
• Deviation from the established standard of care: According to medical norms in Israel and worldwide, the physician was required to perform certain tests, ask certain questions, or order additional tests. This deviation must be significant and not a minor error that any physician could make.
• Causation: The physician's omission or direct error caused delayed treatment or misdiagnosis, and this in turn caused additional harm. If the disease had been detected in time, the harm would have been avoided or mitigated.
• Proven damage: Physical injury, suffering, loss of earning capacity, additional medical expenses, or psychological suffering.

Practical Examples of Diagnostic Negligence

To better understand the topic, here are several examples of situations that could be considered diagnostic negligence:

• Misdiagnosis of chest pain: A patient arrives at a health fund with persistent chest pain. The doctor diagnoses muscle pain or anxiety without performing basic cardiac tests (EKG, troponin test). Later, it is discovered that the patient suffered a heart attack or has heart disease. The delayed treatment resulted in cardiac muscle damage.
• Late diagnosis of diabetes: A patient complains of fatigue, constant thirst, and weight loss for months. The doctor attributes this to depression and does not perform a blood sugar test. Only after a year, when the patient comes for another examination, is advanced diabetes discovered with complications affecting the eyes and feet.
• Failure to diagnose cancer: A patient with a breast lump sees a doctor. The doctor examines it and says it is benign, but does not order additional tests (mammography, ultrasound). After two years, when the lump grows significantly, it is discovered to be cancer. The late treatment caused significant health damage.
• Misdiagnosis of a fracture: A patient who fell down the stairs arrives at the emergency room with arm pain. The doctor examines him and concludes it is merely a contusion requiring ice and rest. Only after three days, when the pain persists, is a fracture of the arm bone discovered requiring surgery. The delay in proper treatment led to complications in recovery.

The Process of Proving Medical Negligence

Proving medical negligence in diagnosis is a complex process requiring close collaboration with medical experts and experienced attorneys. Here are the steps of the process:

1. Collection of medical documentation: Begin by obtaining all relevant medical documentation – visit records, test results, radiological images, and physician notes. This is essential to understand exactly what happened and what should have happened.
2. Consultation with medical professionals: Our firm contacts a medical committee (under the National Insurance Law) or an independent medical expert to review the documentation and provide a professional opinion on the doctor's deviation from medical standards.
3. Examination of causality: The expert examines whether the doctor's omission or direct error caused the damage. It is not sufficient that the doctor made an error – it must be proven that the error directly caused additional damage that would not have occurred if the doctor had acted properly.
4. Assessment of damages: If negligence is proven, it is necessary to assess the extent of damages – including medical expenses, lost income, pain and suffering, permanent disability, and diminished quality of life.
5. Three options: After gathering all information, action can be taken in three ways: negotiation with the medical institution's insurance or the doctor's insurance, an appeal to the National Insurance appeals committee (if the claim is under the National Insurance Law), or filing a lawsuit in court.

Medical Standards and Patient Rights

In Israel, the standard of medical care is defined by the approach established in case law, medical regulations, and the physicians' code of ethics. The standard is what a reasonable doctor with appropriate medical knowledge would do under similar circumstances. This is not about perfect treatment – small errors happen to every doctor – but rather a significant deviation from the norm.

Patient rights include:

• The right to medical treatment that conforms to the accepted standard in Israel and worldwide.
• The right to receive complete information about diagnosis, treatment, and possible risks (informed consent).
• The right to seek a second opinion from another doctor.
• The right to claim compensation if a doctor or medical institution deviated from the standard and caused damage.
• The right to access your medical records.

Types of Damages and Compensation Calculation

When medical negligence in diagnosis is established, compensation determined by a court or settlement includes several categories of damages:

Calculating compensation is a complex process based on compensation tables established in case law, expert damage assessors, and the experience of lawyers in the field. Each case is examined individually, taking into account the patient's age, medical condition prior to negligence, and anticipated future medical care.

Legal Timeframes and Statutes of Limitations

It is important to know that there are legal time limits (statutes of limitations) for medical negligence claims. Generally, you must file suit within three years from the date the injured party discovered or should have discovered the negligence. However, under certain circumstances, statutes of limitations may be suspended or begin from a different point in time. This is why it is very important to consult with a lawyer as soon as possible to ensure you do not miss the deadline.

Challenges in Proving Medical Negligence in Diagnosis

Proving medical negligence in diagnosis is not easy, and there are several legal and medical challenges that must be addressed:

• Medical Standard: Generally, courts require proof that the physician departed from the accepted standard of medical practice. It is not enough that there are differing medical opinions – you must prove a substantial deviation from the norm.
• Causation: There must be proof of a direct link between the physician's error and the injury sustained. If the patient would have suffered from the disease in any case, or if timely treatment could not have restored their health, this may reduce the compensation or result in the claim being dismissed.
• Cost of Medical Examinations: Obtaining expert medical opinions can be expensive. Our firm works with experienced experts who can provide quality opinions.
• Proof of Actual Damages: You must prove that the injury sustained is real and measurable. In cases of depression or emotional suffering, this can be more complex.
• Hospital Defenses: Hospitals and their insurance carriers often contest negligence claims, offer alternative explanations, or argue that the error was not significant.

Why It Is Important to Consult with an Experienced Attorney

Medical negligence claims, particularly in the area of diagnosis, require deep knowledge of both tort law and medical matters. An experienced attorney can:

• Assess the strength of your claim at an early stage.
• Help you obtain quality expert medical opinions from highly credible specialists.
• Conduct effective negotiations with the insurance company, often without the need for prolonged litigation.
• Protect your rights in court if necessary.
• Ensure you do not miss important statute of limitations deadlines.
• Calculate compensation correctly, using compensation tables and prior experience.

At Mendelboum, Gor, Witzman-Gor and Associates, we specialize in tort claims and particularly in representing plaintiffs in medical negligence cases. Since 2008, we have handled hundreds of medical negligence cases, including incorrect and delayed diagnoses, and have secured substantial compensation for our injured clients. We understand the physical and emotional suffering that a victim of medical negligence endures, and we are dedicated to protecting their rights.