Misdiagnosis and the Law

Misdiagnosis and the Law

Misdiagnosis and the Law

We recently read about detrimental effects that a misdiagnosis of terminal cancer (insofar that the patient didn’t have it) has on a person. You can read the news.com.au article here.
 
What the article doesn’t cover is what the law says in that situation.
 
It is difficult to fathom the law imposing a judgment against a person for wrongly saying you are going to die.  But they can.
 
There are two paths open in this situation: either direct psychological/psychiatric harm to you as a result of the misdiagnosis, or indirect harm to your family and friends.
 
Whilst the first hasn’t resulted in a reported decision in Australia, the second has met some resistance in the Courts.
 
In order to prove these types of cases, a duty of care must exist between the Plaintiff (either you or your family and friends) and the Defendant (the Doctor, and in some cases, also the Hospital as employer).  The relationship between you and the Doctor is established by cases such as Rogers v Whitaker and Tabet v Gett.  The extension of the relationship to the friends and family has to date been carefully extended on a case by case basis.  More often than not it is a situation where the duty which was founded did not extend to protecting against psychological and psychiatric harm.
 
For more information on misdiagnosis and the law, feel free to contact one of our  litigation solicitors on 1300 HATZIS (1300 428 947) or email us at litigation@hatzis.com.au.

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