QUESTION
Can I sue an ER if they wrongly diagnosed my problem and now I have to have emergency surgery?
Asked on Jul 10th, 2012 on Personal Injury - Virginia
More details to this question:
When to the ER and they said I have a concussion after performing a cat scan. A week later my jaw is completely swollen to the point I cannot open it and my teeth ache. Went to the dentist they sent me to the ER immediately stated my jaw is broken in two places. Now I must have emergency surgery. Is the ER at fault in any way?
20 ANSWERS
Bruce Arthur Plesser
Yes.
Answered on May 29th, 2013 at 12:50 AM
Plaintiff Animal Bites Attorney serving Missoula, MT
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Bulman Law Associates PLLC
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No.
Answered on May 29th, 2013 at 12:50 AM
How did you get from having a medical problem to a lousy diagnosis to now the lousy diagnosis caused the first problem?
You're getting ahead of yourself and in a way that's it's not making sense. Apparently your jaw was broken; you go into the hospital and they shoot an X-ray but in the wrong place; now you get the right diagnosis and it's your jaw. Well, you can't blame that on the hospital staff's poor choice of the x-ray.
Let's face it you needed the surgery when you first walked into the hospital. The lousy diagnosis didn't break your jaw.
Answered on Aug 13th, 2012 at 4:44 PM
Criminal Defense Attorney serving Montrose, NY
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Law Office of Jared Altman
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Possibly. Yes. For a medical malpractice case to be worth pursuing there must be substantial permanent injuries.
These kinds of cases are expensive and labor intensive. Only a severe injury warrants the costs, commitment and risk of loss that an attorney must assume.
Answered on Aug 13th, 2012 at 4:43 PM
New User
Perhaps. You would need an expert to read the original scan and see if the ER radiologist misread the scan. The question then becomes how were you damaged? Is your long term result worse than it would have been?
Answered on Aug 13th, 2012 at 4:43 PM
Criminal Defense Attorney serving Anderson, SC
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The David F. Stoddard Law Firm
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In theory, possibly. But as a practical matter there is probably no case. First, you would need a doctor to testify that the ER doctor was negligent in failing to diagnose the jaw. This is not a given.
Some failure to diagnose incidents occur despite the doctor exercising all reasonable due care, and there is no negligence.
If there was negligence, then you must have damages caused by the failure to diagnose. If the surgery and the end result is the same as it would have been had the problem been diagnosed the first time(ie., you ultimately had the same surgery you would have had anyway, it just happened later), your only damages would be the additional pain you suffered during the time the surgery was delayed.
Even if the surgery was more complicated and expensive because of the delay, there probably is not enough in damages (extra costs) to justify a Med Mal suit , which often involves tens of thousands of dollars in expenses such as expert witness fees, deposition costs, etc. to bring to court.
If in the end you need to show some permanent impairment to your jaw that would not have resulted had the problem been diagnosed at the ER and you had surgery in a timely manner after that.
In short, your need to show negligence and that the ultimate outcome was worse because of the delay in treatment.
Answered on Aug 13th, 2012 at 4:42 PM
Litigation Attorney serving San Antonio, TX
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Graves Law Firm
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Your damages from the failure to make a timely and correct diagnosis will be a week's delay in getting the needed surgery.
It seems unlikely that your treatment would have been very different if they'd gotten it right at the ER.
Since medical malpractice cases are tremendously expensive to prepare and the preparation costs are not recoverable from the other side, you case would probably not result in a net recovery even if you won.
This is why medical malpractice cases are so seldom filed nowadays. Sorry to be the bearer of bad news.
Answered on Aug 13th, 2012 at 4:42 PM
Personal Injury Attorney serving Charlotte, NC
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Paul Whitfield and Associates P.A.
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That is the VERY question. If the jaw was broken and not diagnosed because of carelessness you would have a claim not for the broken jaw but for the added pain and suffering.
I assume your jaw was broken but either the diagnostic test did not show it clearly or the test result was not properly read.
Diagnostic tests are not always perfect. In any event a medical doctor would have to make the call.
Answered on Aug 13th, 2012 at 4:41 PM
Motor Vehicle Accidents Attorney serving Lincoln, NE
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Lapin Law Offices
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As to your initial question ("Can I sue an ER if they wrongly diagnosed my problem and now I have to have emergency surgery?") the answer is "yes" assuming that the ER committed malpractice by failing to detect your broken jaw. With the additional facts you provide, it is possible that the ER committed malpractice by not detecting your broken jaw. Generally, to establish medical malpractice you must prove each of the following:
(1) the generally recognized medical standard of care;
(2) a deviation from that standard by the doctor;
(3) that the deviation was the proximate cause of your alleged injuries; and
(4) the nature and extent of your injuries and damages. More simply, you have to prove that the doctor did, or did not do, something that most other doctors would have differently under the same circumstances.
In most cases, a doctor must establish (usually through his or her testimony) these items. In your case, you must prove that ER should have detected your broken jaw the first time and that their failure to detect it caused you injuries and damages. From your facts you provide you were "damaged" in their failure to detect the broken jaw as you had to go a week with pain and swelling.
I cannot answer whether they are responsible for your need for the surgery. A doctor would have to say that had the ER detected the broken jaw right away that you would not have needed any surgery. If you would have needed the surgery either way then you would not have a claim for that.
I am not a doctor so I cannot say that the ER committed malpractice. It is possible that they did but, as stated above, a doctor would have to say that the ER was negligent in not detecting your broken jaw.
I would suggest contacting an attorney who handles medical malpractice cases to learn more about whether you have a case.
Answered on Aug 13th, 2012 at 4:40 PM
It depends on what your complaints were when you went to the ER. If you complained about jaw pain and they did not x-ray your jaw then they might be liable. The ultimate question is: If they diagnosed the broken jaw to begin with, would you still have had to have the surgery you had. If not, then you might have a good case. You need to consult with an attorney specializing in medical malpractice. I would be happy to provide you that consultation as it is my specialty.
Answered on Aug 13th, 2012 at 4:38 PM
Yes. You can sue but you'll have to prove that ER was negligent.
Answered on Aug 13th, 2012 at 4:16 PM
Possibly at fault. What are your money damages for them being wrong in the ER? If there had been a correct diagnosis would you still had to have surgery, emergency or otherwise.
Answered on Aug 13th, 2012 at 4:15 PM
Plaintiff's Personal Injury Attorney serving Seattle, WA
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Shaw Legal Solutions
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It depends on how much the failure to diagnose your injury caused you further injury. If the failure to catch it meant you had to deal with the same injury, than probably not. If the delay caused you additional injury which you would not have had if it had been caught in time, than yes. I suggest contacting an attorney with expertise in medical malpractice.
Answered on Aug 13th, 2012 at 4:07 PM
Personal Injury — Plaintiff Attorney serving Taylor, MI
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Downriver Injury & Auto Law
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They may be at fault, but you would have needed the surgery anyway, thus in our view no case.
Answered on Aug 13th, 2012 at 4:03 PM
Houston D. Smith III
The evidentiary standard required to successfully bring a claim against the ER physician is gross negligence, not ordinary negligence. The fact that the ER took x-rays will be considered to be evidence of some action taken, and therefore proof that the ER physician is not guilty of gross negligence. You may have a claim against the radiologist who missed the jaw fracture.
Answered on Aug 13th, 2012 at 3:58 PM
Commercial Transactions Attorney serving Clarksdale, MS
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Holcomb Chaffin and Rogers, P.C.
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Yes, possibly if the ER mis-diagnosed your condition which it appears it did.
Answered on Aug 13th, 2012 at 3:57 PM
Personal Injury -- Plaintiff Attorney serving Cleveland, OH
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Mishkind Law Firm, Co., L.P.A.
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If you sustained trauma to your face and head you may have had a concussion and an injury to the jaw that was missed. It sounds like you had an injury to your head and the head injury or concussion may have been the most concerning issue and obviously the most life threatening condition. If you had a fractured jaw at the time and it was missed, you need to be able to prove that you would not have required surgery if the jaw injury was diagnosed in the emergency room at the time. Because of the swelling that existed at the time, the defense may be that the jaw fracture was not apparent or even if it was, that surgery would have had to be delayed for a period of time. Thus the critical issue is whether earlier surgery would have made a difference. You need to discuss this with your oral surgeon.
Answered on Aug 13th, 2012 at 3:56 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Possibly, however you damages might well be minimal if you were going to need the surgery in any case. How did you jaw get broken, that might be a better cause of action.
Answered on Aug 13th, 2012 at 3:55 PM
This would be a medical malpractice issue. Contact a medical malpractice attorney.
Answered on Aug 13th, 2012 at 3:55 PM
Personal Injury Attorney serving Richmond, VA
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Blank & Marcus, LLC
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You need a board certified ER Dr. to put in writing that malpractice (negligence) occurred before you have a case. I doubt if you can find one without spending a great deal of money.
Answered on Aug 13th, 2012 at 3:53 PM