Your Legal Right to Claim Compensation for the Misdiagnosis of a Fracture
There are a multitude of possibilities that can affect the right to claim compensation for the misdiagnosis of a fracture and this article offers information on various aspects of the claim process; including how a claim for a failure to diagnose a fracture may be handled in various situations. A number of different scenarios are explained when compensation for a bone fracture misdiagnosis may be claimed, and some of the actions which should be taken to ensure a strong claim can be prepared against the doctor or hospital responsible for the failed diagnosis are highlighted.
When a doctor misdiagnoses a fracture, it may not only result in a delay in receiving the correct treatment – the recovery time for the injury will be extended and may potentially lead to life-long health problems. If you have been the victim of a medical misdiagnosis, and you have suffered an avoidable injury as a result, it may be possible to claim fracture misdiagnosis compensation.
Many factors can influence the right to make fracture misdiagnosis claims as well as how much compensation can be recovered; so it is important that legal advice is sought promptly from a specialist medical negligence solicitor. If it is possible for a claim for the misdiagnosis of a bone fracture to be made, you will receive important advice about the steps that must be taken in order to initiate a claim in relation to your own personal situation.
Establishing Negligence in Injury Claims for the Misdiagnosis of a Wrist Fracture
The majority of fracture misdiagnosis claims are made due to the errors by doctors and radiologists in A&E Departments; however, not all patients that receive a bone fracture misdiagnosis in an emergency situation will be entitled to make a claim for compensation. If the misdiagnosis of a wrist fracture is made, but the mistake is identified within a short period of time – during which no discernible deterioration of the injury has occurred – there will be no benefit to the plaintiff of making a wrist fracture misdiagnosis claim.
In order for compensation for a wrist fracture misdiagnosis to be claimed, not only must the plaintiff have sustained a quantifiable injury, the error must have resulted from negligence of a doctor, radiologist or administration staff in the hospital. Some fractures – especially stress fractures – can be difficult to diagnose from an x-ray; and even a highly experienced doctor may not be able to arrive at the correct diagnosis from an x-ray.
For this reason all A&E x-rays should be checked by the radiographer within a couple of days to verify the doctor’s diagnosis. A claim for compensation for the misdiagnosis of a fracture could potentially be made for a procedural or radiographer’s error, and not only a mistake made by a doctor.
Therefore, when preparing a claim for the misdiagnosis of a wrist fracture, a solicitor would engage the services of an independent medical expert to ascertain whether ‘on the balance of probabilities’ a competent doctor would have identified the fracture correctly and, if so, that the claim for the misdiagnosis of a wrist fracture is justified.
Nonetheless, proving medical or professional negligence in a claim for the misdiagnosis of a bone fracture can be complicated as multiple individuals may have made errors which contributed to the misdiagnosis. Without assistance from a specialist medical negligence solicitor, establishing who exactly was to blame and the percentage to which each party was responsible is likely to be complicated.
Health Complications from the Misdiagnosis of a Rib Fracture
The misdiagnosis of a rib fracture is a little different from many other fracture misdiagnosis claims; as the treatment for muscular injuries to the chest is often the same as for fractured bones. Although the same treatment may be prescribed, the advice given to the patient is likely to be different depending on the diagnosis which is made.
A patient may not be warned of the risks associated with a fracture and when to seek medical attention – such as when a patient develops an elevated temperature or fever; which are symptoms of a potential bone infection. Without this information, medical assistance may be sought only after the infection has spread and become more difficult to treat. Compensation for a rib fracture misdiagnosis could certainly be made on these grounds.
Following the misdiagnosis of a rib fracture, a patient might resume work or other activities and take less care resulting in a re-fracture of the rib. Activities may have been different had the patient been aware that a rib had been fractured and making a claim for a failure to diagnose a fracture of a rib on these grounds may be complicated, but should be possible.
Establishing whether compensation for the misdiagnosis of a rib fracture can be claimed is best left to a solicitor, as well as the calculation of how much rib fracture misdiagnosis compensation should be recoverable.
Contributory Negligence and Claims for the Misdiagnosis of a Hip Fracture
When a claim is commenced against a hospital for a bone fracture misdiagnosis, the Health Service Executive (HSE) may allege that the plaintiff has taken a course of action that caused the deterioration in the fracture, which contravened the advice given by the doctor for the condition that was – albeit incorrectly – diagnosed. In the case of the misdiagnosis of a hip fracture, this – for example – could be resuming weight bearing activities too quickly.
If medical advice had been ignored, and this can be proven based on the medical evidence available, it is possible that misdiagnosed hip fracture compensation may be reduced to take the contributory negligence of the plaintiff into account. Should the medical evidence suggest that the plaintiff is wholly responsible for a re-fracture, or a medical complication that has developed, it is probable that the claim for compensation for the misdiagnosis of a fracture will not be successful.
This is one of the reasons why it is essential to have a claim for the misdiagnosis of a hip fracture reviewed by a medical expert prior to the case being made. It is important to establish the probability of the claim being successful before the claim is commenced – including whether the plaintiff has contributed to the level of the injury by their own lack of care – as this may influence the decision to take legal action.
The Injuries Board and Injury Claims for the Misdiagnosis of a Leg Fracture
Fracture misdiagnosis claims can only be resolved by medical opinion, as only a medical professional can establish and prove that another doctor has acted in a negligent manner or has displayed a poor professional performance. Because of this it is beyond the scope of the Injuries Board to assess claims involving medical negligence and the Injuries Board will reject applications to assess leg fracture misdiagnosis compensation claims – or any claim for the misdiagnosis of a bone fracture.
Without the assistance of the Injuries Board it is essential that a plaintiff speaks with a solicitor about making a claim for a failure to diagnose a fracture or a leg fracture misdiagnosis; not only so that an assessment of the amount of compensation for a bone fracture misdiagnosis can be established, but also to ensure that a solid case can be built against a doctor or other medical professional responsible for the misdiagnosis.
A solicitor will need to be informed of the circumstances under which the misdiagnosis was made, how much time elapsed between the misdiagnosis and the correct diagnosis being made, and the consequences of the medical error. An investigation of the case will need to be conducted before the right to claim for the misdiagnosis of a bone fracture in the leg can be fully confirmed, although a solicitor should be able to advise you if it is likely that you will be able to claim compensation for the misdiagnosis of a fracture based on the preliminary information provided to him or her by the plaintiff.
Consequences of the Misdiagnosis of a Femur Fracture
The consequences of a medical misdiagnosis will affect a plaintiff´s eligibility to make a claim for fracture misdiagnosis compensation, and the degree of damage caused by the delay in diagnosis will dictate whether a legal claim for the misdiagnosis of a bone fracture to the femur will be worthwhile pursuing.
Femur fracture misdiagnosis claims are typically possible when a minor fracture has started to heal, only for the fracture to reform due to the victim being unaware of the seriousness of the injury. It is essential that even small cracks in weight bearing bones are diagnosed promptly, as they can easily lead to a full break occurring which may require surgical intervention to correct.
Misdiagnosed femur fractures can also lead to life threatening health complications developing such as blood clots and bone infections. If illness, pain and suffering could have been avoided were it not for the delay in a correct diagnosis, it is reasonable to expect compensation for a bone fracture misdiagnosis to be awarded.
The degree to which an injury has deteriorated must be determined by a specialist doctor after consideration has been given to the delay in recovery time and the possibility of future health complications developing. However, it also has to be taken into account whether an earlier correct diagnosis would have altered the prognosis. If it is established that early treatment would have prevented further injuries and reduced the recovery period, a claim for compensation for the misdiagnosis of a femur fracture should be worth while pursuing.
The Legal Process for Claiming for the Misdiagnosis of a Spine Fracture
Most fracture misdiagnosis claims are preceded by a ‘Letter of Complaint’ to the HSE, private clinic or medical centre at which the misdiagnosis was made and, once the HSE (or other medical centre) has been informed of a misdiagnosis of a spine fracture, and a claim for the misdiagnosis of a bone fracture of the spine has been investigated by a solicitor, the case must be reviewed by a medical expert. Medical negligence can be established by a solicitor but this must be confirmed by an expert in the relevant field.
In a claim for the misdiagnosis of a spine fracture, a specialist orthopaedic surgeon would examine the evidence available and ascertain whether the fracture should have been identified ‘at the time and in the circumstances’. If so, the right to make fracture misdiagnosis claims will be confirmed and a ‘letter of claim’ can then be drafted and issued to the negligent third party deemed responsible. The letter of claim outlines why an individual or hospital is deemed to have been negligent and the reasons why compensation for the misdiagnosis of a fracture is being claimed.
After 90 days has elapsed from the acknowledgement of the letter of claim by the negligent third party, liability to pay compensation for a bone fracture misdiagnosis must be accepted or rejected. Depending on the response, a solicitor will either attempt to obtain a settlement of spinal fracture misdiagnosis compensation or the case will be prepared for litigation.
Calculation of Damages in Claims for the Misdiagnosis of an Arm Fracture
The calculation of compensation for a bone fracture misdiagnosis is a complex process. Damages cannot be recovered for the original injury, only for the deterioration in the fracture and for any medical complications that should have been avoided. The degree of pain and suffering caused by the original injury must be excluded from the calculation, and the difference in recovery time due to the medical error must be ascertained and factored into the fracture misdiagnosis compensation amounts that are being claimed.
Compensation for the misdiagnosis of an arm fracture can also include recompense for any loss of amenity caused by the delay in diagnosing the condition, such as a change in quality of life or the inability to complete day-to-day activities due to the failure to diagnose an arm fracture quickly.
The above factors are claimed under general damages, with the recovery of costs that have been incurred as a result of the medical error also possible in a claim for the misdiagnosis of a bone fracture. Costs are recovered separately under ‘special damages’ and can be considerable in arm fracture misdiagnosis claims, especially when serious health problems have developed due to the delay in diagnosis.
Time Taken to Recover Compensation for the Misdiagnosis of a Radius Fracture
It is difficult to calculate the time taken for compensation for the misdiagnosis of a fracture of a radius bone to be awarded, as there are many factors that can affect how long radial fracture misdiagnosis claims will take to be resolved.
It is vital that a claim for the misdiagnosis of a bone fracture is fully investigated and sufficient evidence of medical negligence is collected to ensure the case has a good probability of being successful, and it can time to build a solid case.
It is not also possible to determine whether the Health Service Executive – or an insurance company representing a private health clinic – will agree to settle and pay compensation for a bone fracture misdiagnosis or if litigation will be required to successfully resolve a case. Because of this, it is usually only possible to provide a very general estimate of how long it should take for a claim for the misdiagnosis of a radius fracture to be resolved once a provisional assessment has been made. Typically, it takes many months before radial fracture misdiagnosis compensation can be recovered, so it is important that the claims process is commenced as soon as possible.
Time Limits to Claim for the Misdiagnosis of a Shoulder Fracture
A ‘Letter of Complaint’ should be sent to the HSE within twelve months of the misdiagnosis, and the claim for the misdiagnosis of a bone fracture in the shoulder must be made within 24 months. If either of these procedures is not completed within the appropriate time window, it may not be possible to recover compensation for the misdiagnosis of a fracture to the shoulder.
Even though the window for making shoulder fracture misdiagnosis claims may appear to give a plaintiff plenty of time to start the claims process, it can take a considerable amount of time for claims for compensation for a bone fracture misdiagnosis to be prepared and evidence compiled against a doctor or hospital. It is therefore important that all legal procedures are completed promptly to ensure the claim for shoulder fracture misdiagnosis compensation does not become time barred.
Unsolicited Offers of Compensation for the Misdiagnosis of a Skull Fracture
Although insurance companies frequently attempt to settle personal injury claims directly with a plaintiff, it is extremely unlikely that an unsolicited offer of compensation for the misdiagnosis of a fracture of the skull will be made by the State Claims Agency on behalf of the HSE. Medical negligence has to be proven before liability is accepted and it is usually necessary to issue proceedings before an offer of a settlement for skull fracture misdiagnosis compensation is presented.
A claim against a private health care clinic may result in compensation for a bone fracture misdiagnosis being offered to a plaintiff directly by an insurance company. If you are approached directly and are offered a settlement, it is vital that legal advice is sought before the decision to accept the offer is made.
In the rare event that an insurance company or the State Claims Agency attempts to prevent a claim for the misdiagnosis of a bone fracture being made by making an unsolicited offer of compensation, it is done only as a cost saving exercise. A substantially lower compensation amount would be offered than the plaintiff would be entitled to recover if skull fracture misdiagnosis claims were made. The advice of a solicitor is therefore invaluable in these circumstances to ensure a potential claim is not under-settled.
Making Children´s Claim for the Misdiagnosis of an Ankle Fracture
Before a claim for the misdiagnosis of a bone fracture is made for a child, it is vital that the degree of ankle damage caused by the delay in treatment is accurately assessed. Full consideration must be given to potential health issues in the future that may result from any deterioration in an ankle fracture caused by a delay in receiving the correct diagnosis.
The Book of Quantum – the reference used when calculating compensation amounts – does not factor in future health problems, with suggested compensation levels only based on the pain, suffering and loss of amenity caused by a particular injury. When a medical negligence solicitor calculates compensation amounts for the misdiagnosis of a fracture, the risk of suffering future health complications will be considered and medical clarification sought.
Although a claim must be delayed until a legal minor reaches eighteen years of age for the claim to be made personally by the child, delaying ankle fracture misdiagnosis claims this long would rarely be recommended, and could even jeopardise the probability of fracture misdiagnosis compensation being recovered. The best course of action to ensure that compensation for a bone fracture misdiagnosis can be recovered is for the claim to be made on behalf a legal minor by an adult acting as a ‘next friend’ for the child.
Acting as a Next Friend on Behalf of a Child in a Misdiagnosis of a Foot Fracture Claim
Claiming compensation for the misdiagnosis of a fracture in the foot on behalf of a child should be given serious consideration. When foot fracture misdiagnosis claims are made promptly by a ‘next friend’, the probability of the case being successful is likely to be substantially increased. Delaying a claim for the misdiagnosis of a bone fracture for a number of years until the victim reaches the age of consent is likely to be to the detriment of the case.
For a parent, legal guardian or relative to claim compensation for a bone fracture misdiagnosis as a next friend on behalf of a child whose injury has deteriorated as a result of a failure to diagnose a fracture, the courts must authorise the appointment. The courts are not obliged to allow foot fracture misdiagnosis compensation to be claimed by a next friend, so it is important that a solicitor assists with the application to the courts to ensure that the appointment is accepted.
Speak with a Solicitor about Claiming Fracture Misdiagnosis Compensation
When legal advice is sought promptly – and when evidence of negligence by a medical professional is collected soon after the medical error has been made – the probability of fracture misdiagnosis claims being successful will be greater.
Since the Injuries Board will not assist with claims for compensation for the misdiagnosis of a fracture, and the fact that liability for a medical error is almost never accepted by the HSE, it is vital that a solid claim for the misdiagnosis of a bone fracture is prepared. The assistance of a specialist medical negligence solicitor will therefore be invaluable in this regard.
Without the Injuries Board to assess the amount of compensation for a bone fracture misdiagnosis that can be recovered, a solicitor will need to calculate the maximum entitlement to fracture misdiagnosis compensation and an experienced solicitor will attempt to get the highest possible settlement from the State Claims Agency or will prepare the case for litigation in order to obtain an appropriate award of damages through the courts.