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Can You Sue a Doctor for a Flu Misdiagnosis?

Written by Berkowitz

Gavel and Stethoscope on Dark environment

It is possible to successfully sue a doctor for a flu diagnosis if (i) the doctor’s misdiagnosis represented professional negligence and (ii) the misdiagnosis caused you actual harm. Other factors are relevant too. However, the foregoing two factors account for the issues in contention in most flu misdiagnosis cases. A simple misdiagnosis, without more, is not enough to support a viable Connecticut malpractice claim.

The Legal Elements of Malpractice

To win a malpractice case, you must establish the existence of all of the following legal elements of malpractice by a “preponderance of the evidence.” In other words, you must establish that it is more likely than not that the element in question is present in the fact pattern that represents the case.

Element 1: A Doctor-Patient Relationship Was Established

The establishment of a doctor-patient relationship is easy to prove. If you sought medical advice from the defendant who you knew to be a doctor, then a doctor-patient relationship is probably established. It might not be established in certain unusual cases, such as a passing doctor who stops to give first aid to the victim of a traffic accident, for example.

Element 2: The Doctor Was Subject to a Defined Professional Duty of Care

Doctors are expected to meet a particular duty of care towards their patients, which varies from patient to patient and from doctor to doctor. Formulating the exact duty of care that the doctor was subject to is a highly fact-dependent enterprise – in other words, it depends on the situation.

You may need to secure the testimony of an expert medical witness (perhaps a doctor himself) to supply the particular standard of care that the defendant would be subject to. Many expert witnesses make a full-time living testifying in court, and a skilled personal injury lawyer will have already established relationships with such experts. The use of such an expert is routine in a malpractice claim.

Element 3: The Doctor Breached Their Duty of Care (Professional Negligence)

Once you have established the standard of care that the doctor is subject to, you will need to establish that the doctor failed to meet this standard. The doctor may have breached his duty of care by failing to take your temperature, for example, or by failing to order blood tests. This element will probably be established through evidence such as eyewitness testimony and medical records.

Possible acts or omissions that might constitute professional negligence

Any number of actions or failures to act might constitute professional negligence under a given set of circumstances. Some of the most common acts or omissions that occur in flu misdiagnosis cases include:

  • Failure to screen for the flu;
  • Failure to appropriately question the patient about their current symptoms and medical history;
  • Failure to investigate all possible causes of the symptoms reported by the patient;
  • Failure to order additional tests after receiving preliminary test results that indicate a possible problem;
  • Use of inappropriate testing procedures;
  • Misinterpretation of test results;
  • Failure to devote enough time to the patient to reach an accurate diagnosis (especially during a busy flu season when doctor caseloads are high);
  • Prematurely dismissing patient complaints;
  • Assuming that the patient is exaggerating their symptoms; and
  • Failure to document all reported symptoms.

The foregoing is only a small sample of possible ways in which a doctor’s conduct might fall below the professional standard for a diagnosis.

Element 4: You Suffered Damages Due to the Doctor’s Misdiagnosis

You must prove the existence of the damages you suffered, including medical expenses, lost earnings, pain and suffering, and other damages. The dollar amount of any claim you make must be justified by the damage you can prove that you suffered.

Just because you suffered damages due to an illness doesn’t mean that your damages were caused by the misdiagnosis, however, and this is a common sticking point in malpractice claims based on a misdiagnosis. Since the doctor’s misdiagnosis did not cause the illness that caused you to seek the diagnosis in the first place, you cannot collect damages for the illness itself, only for the extent to which your condition worsened due to the misdiagnosis.

Two Types of Flu Misdiagnosis

Two types of misdiagnosis are possible: (i) misdiagnosis of another illness as the flu, and (ii) misdiagnosis of the flu as another illness.

Misdiagnosis of Another Illness As an Ordinary Case of the Flu

Misdiagnosing another illness as the flu can serve to mask the symptoms of that illness, and it can do great harm if the illness itself is more harmful than the flu. Conditions that can easily be misdiagnosed as an ordinary case of the flu at some point or another include:

  • Bacterial infections;
  • Bronchitis;
  • Certain types of cancer;
  • COVID-19;
  • Ebola;
  • HIV;
  • Malaria;
  • Meningitis;
  • Pneumonia;
  • SARS;
  • Sepsis;
  • Swine flu (a particularly serious variant of the flu);
  • Tuberculosis; and
  • Whooping cough.

Ways in which misdiagnosis of another illness as the flu could harm you or others

Misdiagnosing another illness like the flu, which is typically one of the least serious illnesses for which medical attention is sought, can harm you in the following ways:

  • By delaying proper treatment can result in the worsening of your symptoms.
  • The delay of proper treatment can result in complications that might cause you permanent damage.
  • You could die from the illness, leaving it to the executor of your probate estate to file a wrongful death lawsuit on behalf of the beneficiaries of your probate estate.
  • The doctor fails to realize how contagious your disease is, failing to properly quarantine you and the spread of your disease to someone else.

Special Legal Protections Related to the COVID-19 Pandemic

The COVID-19 pandemic has resulted in such high caseloads that volunteers are being recruited. To prevent malpractice law from becoming a disincentive for such people to serve during the pandemic, certain extraordinary legal protections have been instituted at the federal level that makes it more difficult to maintain a lawsuit in the face of a COVID-19-related misdiagnosis.

A doctor or other healthcare professional who provides medical services to COVID-19 patients on a volunteer basis is close to untouchable with a malpractice lawsuit. They are exempt from lawsuits regarding the diagnosis, prevention, and treatment of COVID-19, for example.

Like just about any other law, however, this one provides certain exceptions, including:

  • Gross negligence (extreme negligence);
  • Criminal misconduct; and
  • Providing any form of medical care, including diagnosis, while intoxicated.

These federal protections override any contrary provisions in state law, except that state laws are permitted to offer even more protection against civil liability than federal law does. Connecticut has passed its laws on this issue, but they don’t affect liability very much, except to add fraud and willful misconduct to the exceptions listed above.

Misdiagnosis of the Flu as Another Illness

Two facts are particularly relevant in this type of misdiagnosis: (i) there is no cure for the flu, and (ii) the flu is not a particularly serious illness for most people. In many cases, the defendant’s doctor will be able to argue that even with a proper diagnosis, he still wouldn’t have been able to cure you of the flu. In addition, the damages you suffered should be limited to the degree that your symptoms were worse than they would have been with a timely flu diagnosis.

Much depends on the facts of your particular case, however. Suppose, for example, that you are suing for the wrongful death of your grandmother, who died from a misdiagnosed case of the flu. If you could establish that a timely diagnosis would have led to life-saving medical treatment (even though short of an outright cure), you could credibly claim that the doctor’s misdiagnosis cost your grandmother her life.

Suing for emotional distress

Another possible ground that might prompt someone to sue a doctor over a flu misdiagnosis would be if the doctor misdiagnosed the flu as a more serious disease, such as a COVID-19. In that case, the patient might be tempted to sue the doctor for the emotional distress generated by the misdiagnosis. In a malpractice lawsuit, however, you cannot sue for mere emotional distress – you must show some physical harm in addition to emotional distress.

It might be possible under these circumstances to sue a doctor for negligent infliction of emotional distress, a claim that is not normally applied to medical treatment. Such a claim does not seem particularly likely to succeed, however.

When the failure to diagnose the flu can be serious

Most people who get the flu will recover in a few days or two weeks at most. Even if the flu is left untreated, many people who contract it will not become seriously ill. Some people, however, will experience moderate to severe symptoms or even death if the flu is left untreated, or if it is treated improperly because the doctor misidentifies it as another condition.

Complications of the flu can include:

  • Acute Respiratory Distress Syndrome (ARDS);
  • Bacterial infection;
  • Bronchitis;
  • Immobilization;
  • Joint contractures;
  • Lung failure;
  • Multiple organ failure;
  • Pneumonia;
  • Prolonged hospitalizations;
  • Respiratory failure; and
  • Death.

Just about everyone is susceptible to the flu. Some groups of people, however, run a greater risk of serious complications such as the ones listed above. These people include:

  • Children under 5;
  • The elderly;
  • People with pre-existing respiratory conditions such as COPD, COVID-19, asthma, etc.; and
  • People with other underlying medical conditions such as morbid obesity, diabetes, or heart disease.

Misdiagnosis of people in high-risk categories who later suffer serious flu complications can support a malpractice claim under the right circumstances.

We’re Ready to Go to War for You

If you suffered harm due to a flu misdiagnosis, you may or may not have a viable claim. We will be happy, however, to offer you a free consultation so that we can listen to your story and evaluate your claim. Contact Berkowitz Hanna to get the claim process started today! Remember: You won’t owe us a dime unless we win your case.