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Ask the Experts

Question:

I was recently diagnosed with a medical condition that for the past few years has been misdiagnosed as a treatment refractory psychiatric condition. What sort of compensation am I entitled to from the psychiatric community?

Answered by: Paul Appelbaum

Compensation for medical errors in the U.S. is based on a finding of negligence (referred to as "malpractice" in professional contexts) in the delivery of medical care.

Persons who believe that they have been harmed by negligent medical care (which may include negligent diagnosis) can bring a lawsuit alleging malpractice.

To succeed, they will need to demonstrate that the physician(s) in question had established a doctor-patient relationship with them; that the physician(s) failed to perform according to the standard of care of the profession for similar cases; that they suffered harm; and that the harm resulted from the negligent care.

The amount of compensation they receive will depend on a legal factfinder's determination of the harms they suffered. Unlike so-called "no fault" systems (as in New Zealand), harm resulting from medical care in itself is not the basis for compensation in the absence of negligence.

That is, merely because the physician made an incorrect diagnosis that led to incorrect treatment will not result in compensation, unless it can be proven that the physician was negligent in doing so.

The first step in seeking compensation is typically to consult a plaintiffs' attorney for his/her evaluation of the case.