Misdiagnosis by a doctor? These are your rights and compensation

An incorrect or delayed diagnosis can have major consequences for a patient’s health.
When a doctor fails to recognize a condition or makes an incorrect diagnosis, that often causes unnecessary suffering, incorrect treatments, and sometimes permanent harm.

But when is there a case of a “medical error”, and who is then “liable” for the consequences? In this blog we explain what is meant by an incorrect diagnosis, how liability is determined, and what you can do if you have suffered damage as a result.

For many patients, an incorrect diagnosis has profound consequences. Not only physically, but also emotionally and financially. That is precisely why it is important to know what you are entitled to.

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What is an incorrect diagnosis in healthcare?

An incorrect diagnosis means that a doctor or specialist incorrectly determines the nature or cause of the symptoms.
This can take various forms, such as:

• A disease or condition is not recognized (missed diagnosis);

• The wrong disease is diagnosed (incorrect diagnosis);

• The diagnosis is made too late, causing treatment to start too late;

• Or the correct diagnosis is only made after unnecessary or harmful treatments have already taken place.

Not every incorrect diagnosis is automatically a medical error. Doctors work with limited information, and some diseases are difficult to recognize.
It is only a medical error if a reasonably acting physician in the same situation should and could have acted differently.

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When does a wrong diagnosis count as a medical error?

A misdiagnosis is considered a medical error considered if the doctor:

• has conducted insufficient examination,

• has ignored the patient’s complaints or signs,

• has ordered the wrong tests,

• or has misinterpreted results.

So it is not only about what has been determined, but also about how the doctor reached that conclusion.
The test is: did the doctor act as a reasonably competent and careful doctor would in the same situation?

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Examples from practice

• Missed heart attack: a patient visits the general practitioner with chest pain. The doctor thinks of muscle pain and does not investigate further. Later, it turns out to be a heart attack.

• Misdiagnosis in cancer: an X-ray is assessed incorrectly, causing a tumor to be discovered only months later.

• Delayed diagnosis in stroke: warning signs are missed, causing treatment to start too late and resulting in permanent injury.

In such cases it can be argued that the doctor or the hospital has acted negligently, which leads to liability.

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Who is liable in the event of a misdiagnosis?

If it is established that the doctor has acted negligently, both the doctor themself and the hospital be liable.

The general rule is:

• The physician is liable for their own actions;

• The hospital or healthcare institution is liable for errors made by its employees (the so-called liability for auxiliary persons).

You can therefore hold the hospital organization liable, even if the error was made by an individual physician.
This prevents you from having to figure out exactly who is responsible within the team of specialists.

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Evidence in case of a misdiagnosis

To prove liability, two things must be demonstrated:

1. That the doctor a culpable error has made;

2. That your harm is the result of that error (the causal link).

The evidence is often complex, because it requires medical knowledge.
Therefore, almost always a medical expert assessment carried out.

An independent medical specialist assesses:

• whether the doctor’s actions deviated from what is customary in the profession;

• and whether that deviation led to your harm.

You can read more about this topic in our blog Causal link in medical errors.

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What if the diagnosis was made too late?

A delayed diagnosis is one of the most common medical errors.
Sometimes the doctor did not act incorrectly at first, but later he should have responded better to changing symptoms or new test results.

A delayed diagnosis can have serious consequences:

• Treatment starts later, reducing the chances of recovery;

• Unnecessary harm or complications arise;

• Or the condition is by then in an advanced stage.

In that case, the patient may be entitled to compensation for loss of a chance of recovery.
That means that you will not receive the full amount that would apply with full recovery, but compensation in proportion to the lost chance.

Read more about this in our blog Loss of a chance in medical law.

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Compensation for misdiagnosis

If liability has been established, you are entitled to compensation for all losses caused by the error, such as:

• medical expenses (examinations, treatment, medication, rehabilitation);

• loss of income due to incapacity for work;

• costs for household help or informal care;

• travel and accommodation costs for medical appointments;

• and damages for pain and suffering for the psychological and emotional harm.

Do you want to know how the amount of damages for pain and suffering is determined? Then read our blog How can you calculate damages for pain and suffering?.

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What can you do in the event of a misdiagnosis?

1. Request your medical records – you have a right of access.
   It shows which tests have been performed, who reviewed them, and what was discussed.
   Read more about this in Medical record: access, copy and correction.

2. Document your symptoms and effects.
   Note what losses you have suffered and how the error affects your daily life.

3. Have a medical advisor review your file.
   They can determine whether negligent conduct was involved.

4. Hire a specialized attorney.
   That way, you can be sure that your rights are safeguarded and your losses are calculated correctly.

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Why legal assistance is important

Proving a misdiagnosis is complex.
Medical experts are required, medical protocols must be reviewed, and the causal link must be convincingly demonstrated.

At Arslan Advocaten experienced personal injury and health law attorneys work together with medical advisors.
We provide:

• expert assessment of your case file;

• legal substantiation of liability;

• and maximum compensation.

Our assistance is free of charge for victims, because the costs are recovered from the liable party.

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Why choose Arslan Advocaten?

• Specialized in medical errors and misdiagnoses

• Close collaboration with medical experts

• Proven results in complex liability cases

• Free legal assistance for victims

We ensure a thorough assessment of your case and do everything we can to recover the compensation you are entitled to.

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