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Legal Steps to Take After Misdiagnosis

If the misdiagnosis of a condition or delayed diagnosis of such a condition led to injury of the patient, the patient has the right to institute legal steps against the medical practitioner to get compensation for the damages suffered.

The steps to take after misdiagnosis are the same as that of proving medical malpractice. The patient should seek legal guidance regarding the matter as soon as possible. Keep in mind that the patient must initiate legal proceedings within three years from when the debt became due. The timeframe is best discussed with a medical law attorney.

The patient’s attorney will assess the merits of the misdiagnosis case and if found that the misdiagnosis caused injury to the patient, will seek an out-of-court settlement. If not achieved, the attorney, on the instruction of the client, will commence with legal proceedings in the Magistrate’s Court or the High Court.

What the Patient Must Do

The patient should keep meticulous record of all communication with their medical practitioner, costs associated with treatments and aftercare, as well as loss of income as the result of the injury suffered. The patient should obtain their medical records from the particular practitioner or institution. However, the practitioner can attempt to delay in delivering the records or alter the records. As such, making use of an experienced malpractice attorney right from the onset is important. The attorney will give notice to the practitioner or the institution to request the original documents.

The attorney will also seek assistance from a medical expert to determine whether the medical misdiagnosis caused the patient’s injury. In addition, the attorney will seek medical expertise to determine whether the practitioner provided a reasonable standard of care. Did the practitioner take the necessary steps in diagnosing the patient in accordance with an acceptable standard for getting to a diagnosis? Did the practitioner perform the necessary tests? Was the practitioner competent? Did the medical practitioner seek a second opinion or refer the patient to a specialist upon failing to be able to make an accurate diagnosis?

The above and many other factors are considered and investigated by the malpractice attorney. If the case is heard in court, the judge must decide whether the misdiagnosis caused the injury suffered by the patient, whether it could have been avoided, and whether the practitioner had a duty of care.

Medical experts will testify, and the attorney will submit patient records, in addition to proof of expenses associated with the particular injury suffered.


The victim of the misdiagnosis can claim compensation for past hospital and medical expenses, future hospital and medical expenses, past and future loss of earnings, and general damages for emotional trauma, disfigurement, and loss of amenities of life as relevant. The Court decides on the damages to be paid. General damages are not financial damages that can be calculated with accuracy and, therefore, the payment for such is at the discretion of the Court.

With medical law cases heard in open court, the medical practitioner or institution may want to avoid the negative publicity and thus rather settle out of court. If the misdiagnosis case goes to trial, however, the patient can expect it to be a lengthy and complex process, best handled by an experienced medical law attorney.

If you have suffered due to misdiagnosis and wish to seek legal counsel, feel free to contact Adele van der Walt Incorporated.


Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt Incorporated before relying on this information to make any legal decisions.

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