Q.—My doctor misdiagnosed my condition. Can I sue him?
A.—It depends. The fact that a doctor misdiagnosed a medical condition is only the first factor to consider. The next factor to consider is whether or not the misdiagnosis was a violation of the standard of care (see below). Then it must be determined if the condition has been substantially worsened by the misdiagnosis.
Q.—My doctor promised me after surgery that I would feel better, but I feel worse. Can I sue him?
A.—Not necessarily. In almost every case, a person signs forms that acknowledge certain risks and that there is no guarantee. This is called informed consent. If a person is feeling worse because the doctor did something wrong in the surgery, then a lawsuit may be possible. On the other hand, if the doctor did everything correctly, then usually there is no basis for a lawsuit.
Q.—I was told that I cannot sue my doctor because it is too expensive to file a malpractice lawsuit. Why is it so expensive?
A.—Michigan law requires that a doctor of like training must testify against the doctor you are suing. This is an expert witness. The expert witness has to testify as to the standard of care and how the doctor you are suing violated that standard of care. These expert witnesses cost a lot of money.
Q.—Standard of care? What is that?
A.—The basis for a claim against a doctor is that he did something that other doctors of the same learning, skill and judgment would not have done. For example, if you must have your left leg amputated and the doctor cuts off your right leg instead, that is malpractice. It is malpractice because no doctor with similar training and knowledge would amputate the wrong leg. On the other hand, a bad result is not necessarily malpractice, if the doctor did everything correctly. In medicine, there are certain things beyond a doctor’s control. In many procedures there are inherent risks. For example, a common risk in surgery is an infection can occur that is not the doctor’s fault.
Q.—What are significant damages to justify a malpractice action?
A.—First, the damages must be caused by the doctor’s malpractice and not the original condition. Even if the doctor did something wrong, there is no case to pursue if your situation is not worsened. Second, the damages have to be significant enough to justify the large cost of investigation and preparation for trial.
Q.—Is there a time limit to file a malpractice case?
A.—Generally a case must be filed within two years from the date the act of malpractice was committed according to MCL 600.5838a. There are exceptions. For example a case can be filed within 6 months after malpractice should have been discovered. For minors (children under the age of 18) there are different rules under MCL 600.5851 (7) and (8). There exists many rules as to when a case must be filed. A lawyer should be consulted for the specifics of any situation.