Claiming compensation for the misdiagnosis of a fractured bone is not always as straightforward as it seems. Though many would see it as an obvious example of medical negligence, as doctors should not be able to miss such an injury when accounting for their training and facilities, it is not always treated as such.
The misdiagnosis of a broken bone can form the basis of personal injury claims in Ireland, though the possibility of recovering compensation can vary based on the personal circumstances of the victim and how the fracture has affected his or her life.
Fractured Foot Bones and Medical Negligence Claims
After the victim of a broken bone misdiagnosis has contacted their solicitor, one of the first steps in assessing the claim is clarifying whether or not the failed diagnosis classifies as medical negligence. Though many think otherwise, the nature of medicine means that doctors cannot always make a correct diagnosis as soon as they receive the case. This can happen when the fractured foot bone is not obvious upon initial examination and fails to present in the diagnostic tests.
Should it be found that the doctor who misdiagnosed the fractured foot could not have been expected to do so – given the circumstances of the case – the doctor will not be able to be prosecuted for medical negligence. As such, the possible claimant will not be able to make a claim for medical negligence compensation.
However, if the medical staff made an error due to incompetence, poor professional performance or inexperience, the case could be seen as one of medical negligence and the claimant can proceed with a medical negligence claim.
Further Injuries Caused by a Fracture Misdiagnosis
Even if a medical negligence claim can be made based upon the misdiagnosis of a broken tibia or fibula, the claim will only recover compensation if it has had a negative impact upon the victim’s health. If the delayed treatment due to misdiagnosis doesn’t worsen the existing injury, the claimant is not considered to have suffered and will not be able to make a successful claim.
At the other extreme, if the delayed diagnosis does cause a deterioration in health or notable extension in recovery time, the victim should be able to claim compensation. If the bone needs to be re-fractured such that it can be reset properly, this would be considered an injury as the result of a delayed fracture diagnosis.
Liability: Attributing Guilt to A Third Party
The doctor diagnosing the fracture may not be liable for the misdiagnosis: if they were provided with an x-ray that was faulty because of the radiographer, the doctor could not be brought up on medical negligence charges. This should not affect the victim’s ability to claim compensation, as the misdiagnosis was the result of the malpractice of a medical professional partaking in the diagnostic process.
There are several mistakes that could be made by the radiographer: he or she could give the doctor the results for a different patient, position the injured party’s injured body part incorrectly and obscure the view to the broken bone or just take an unclear x-ray. However, if the doctor fails to ask for a second x-ray because where it was obvious ones were required, they could be assigned partial liability for any resulting injuries. Additionally, in many hospitals it is standard that x-rays be rechecked a few days after they are taken to try and prevent a misdiagnosis.
If a case involves the misdiagnosis of a fractured rib, it adds a complication to the process of recovering compensation. Fractured ribs – even when correctly diagnosed – are potentially very harmful to the victim. Thus it must be proven that – on a balance of probabilities – that any injuries sustained after the misdiagnosis of a fractured rib were caused by the delay in treatment.
Steps in Recovering Compensation for a Misdiagnosed Fracture
After assessment, once it is clear that a person was injured by the misdiagnosis of a fracture due to medical negligence, the claimant can work with his or her solicitor to claim compensation. First, a “Letter of Claim” must be written and then sent to the negligent parties. The letter should detail why each party has been contacted and why they should pay a compensation settlement to the claimant.
The next steps will entirely depend upon whether the respondents accept their liability. Without a compelling case – supported by strong evidence – it is unlikely that they will accept liability. Should this happen, the case will need to proceed to a court hearing for a judge to assign liability. This is usually a requirement if the claimant hopes to recover a fair settlement from the HSE or an insurance company.
However, this should not deter a possible claimant from making the claim. If he or she has contacted a solicitor very shortly after the correct diagnosis of their fracture has been made, it will give them the best chance at making a strong case for a settlement.
Medicine is uncertain, thus it can be hard to show that – without a doubt – a person’s deterioration in health was attributable to the failure to diagnose a fracture. Knowing this, the HSE or the State Claims Agency will almost always reject liability and then compile a defence.
However, the HSE will sometimes engage in negotiations with a claimant outside of the court system. This may occur if it is clear that the misdiagnosis was made because of medical incompetence, or if the predicted settlement is low. Avoiding litigation may be best for all concerned: the plaintiff will receive a settlement of compensation, the case will be dealt with quickly and the HSE will not have as high legal costs.
Values of Compensation Settlements
Before a compensation claim is settled, it is usually reviewed by an independent medical professional to confirm the facts of the case. Even so, the calculation of the claim is rarely straightforward: a myriad of factors mean that the compensation settlement will probably be unique to the case in question. Factors such as the impact on the quality of life of the victim, the potential risks for the future and the likelihood of full recovery can all impact the calculations.
In some cases, the victim may have exacerbated his or her injuries and contributed to his or her suffering. This can reduce the amount of compensation to which they are entitled. For example, if a doctor gives express advice concerning the patient’s injury, and the patient fails to follow it, even if a misdiagnosis was made the patient could be seen as contributing to their injury.
Claiming Compensation for a Minor
When claiming on behalf of a child, additional steps must be carried out before compensation can be sought. A court hearing will always be required, and the courts will be involved much earlier on in the process than in the case of an adult. Any settlements of compensation offered to the child must first be approved by a judge before they can be awarded. This rule is in place to ensure that the settlement is appropriate and in the child’s best interests.
As the child is a legal minor, and as such unable to represent themselves legally, someone will have to act as the “next friend” of the child in the proceedings. This task is usually undertaken by the minor’s legal guardian or parent.
When to Make the Medical Negligence Claim
It is always advisable that the victim of a misdiagnosed fracture contact a medical negligence solicitor as soon as possible after the mistake is discovered and the correct diagnosis made. Ordinarily, the claim will be made soon after this point, though if any negative consequences have not become apparent yet, the solicitor may advise waiting to file for compensation. This allows for an accurate assessment of the true extent to which the victim has suffered.
Yet there is still a limit to how long one can wait after the correct diagnosis has been made: the Statute of Limitations for medical negligence is twenty four months. The medical negligence solicitor handling the case will be able to give more accurate guidelines concerning timescales and procedures.
Fracture Misdiagnoses: A Summary
The failure to diagnose a fracture does not always constitute a claim for medical negligence. A patient may only claim medical negligence if it can be shown that the delayed treatment lead to a deterioration in health that would have not otherwise occurred had a correct diagnosis been made. This is particularly complicated, and as such court litigation is often required to assign liability. The courts must always be involved when claiming for a child.
As always, one seeking compensation for any sort of medical negligence claim should engage a solicitor as soon as possible after the correct diagnosis is made to facilitate the collection of evidence, which in turn will strengthen the case for compensation.