As part of our busy clinical negligence workload, we tend to find that the vast majority of cases we are asked to consider come under the heading of missed or delayed diagnoses. Of these, the majority of enquiries seem to emanate from treatment at A&E or at a GP practice, although delays and misdiagnosis in cancer cases and in surgery in general. In our experience, particular difficulties often concern fractured wrists, the development of appendicitis and cauda equina syndrome.
These cases are difficult for patients to understand as of course they had a reason to visit their general practitioner or the A&E department as they had a problem in the first place. If the diagnosis has been missed or delayed then a patient is not able to claim for the whole illness or condition and detailed analysis of the claim has to be considered. As advising solicitors we have to consider what the situation would have been if the diagnosis had not been missed or delayed and what treatment should have been provided. Most importantly we have to consider what difference this would have made to the overall outcome.
Once the position is clear we would claim compensation to reflect the difference between the outcome a patient has had, as opposed to the outcome they should have had.
To consider these types of claims it is necessary for us to obtain the medical notes and records and then to obtain an independent expert’s opinion.
Firstly, the expert will have to consider the doctor’s actions and whether they failed to act in accordance with a practice accepted by a reasonable body of medical practitioners in that discipline.
Secondly, they will have to consider causation. This is often a difficult concept for patients and medico-legal experts to grasp, but essentially, we are looking to see if the diagnosis had not been missed or delayed, what treatment would have taken place and would this have lead to a much more favourable outcome.
Once we have the report we can draft a letter of claim and there is a pre-action protocol for the resolution of clinical disputes that we must follow.
In these types of cases, new clients often make contact complaining that the doctor or hospital concerned have made a mistake. However, we still have to obtain evidence to prove the issue of causation and often this is a difficult area in these types of cases. As outlined above we have to show that the delay or misdiagnosis has made a difference to the outcome.
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