Effective on January 1, 2023, the damages cap for a non-death failure to diagnose caused by medical malpractice increased from $250,000 to $350,000, eventually reaching $750,000 over the next ten years, according to a new bill signed into effect by California Governor Newsom in May 2022.
Cancer is a disease in which abnormal or damaged cells grow uncontrollably. There are many types of cancer, as it can occur in any part of the body. Early diagnosis is crucial to the proper treatment of a serious medical condition such as cancer.
Diagnostic tests that have been developed in recent years provide doctors with access to a wealth of information about a patient’s body and make it easier to identify cancerous growths. Yet, missed cancer diagnoses are considered a leading contributor in patient harm and medical malpractice.
The first step to treating a patient is a proper diagnosis of their condition.
When we visit a doctor or hospital with a health concern, we trust their education and experience will provide an accurate diagnosis and treatment options. When a doctor fails to diagnose or improperly diagnoses a patient’s medical condition, there is the potential for greater health concerns as the illness manifests.
Allowing a patient to go days, weeks, months, or years without proper treatment can be detrimental to their recovery. The patient may be extremely limited in their treatment options once the correct diagnosis is determined or their lifespan may be drastically shortened.
Failure to Diagnose
Failure to diagnose falls under medical negligence or malpractice and describes claims in which a medical professional fails to diagnose, misdiagnoses, or delays the diagnosis of a serious condition such as cancer, heart disease, or stroke, leading to additional complications and even death.
Misdiagnoses and failure to diagnose can deprive you of the opportunity to treat the illness at its earliest stages or can lead to incorrect treatment or lack of necessary treatment. If you are harmed as a result of a misdiagnosis, you may have grounds to file a medical malpractice lawsuit against the provider.
Data collected between 2017 and 2021 shows that just over a quarter of all medical malpractice cases during that time stemmed from a failure to diagnose or a misdiagnosis. Cancer is one of the most common misdiagnoses that can lead to substantial pain and suffering, diminished quality of life, and massive medical expenses. If medical negligence or malpractice is involved in a misdiagnosis the patient has the right to seek legal action which may result in a collection of damages and hold the doctor or hospital responsible.
Changes to the Medical Injury Compensation Reform Act of 1975, also known as “MICRA” can significantly impact the amount a plaintiff can recover for pain and suffering in a medical malpractice lawsuit. Assembly Bill 35, which comes into effect January 1, 2023, increases the medical malpractice cap for non-death cases to $350,000 and will continue increasing over the next decade, eventually rising to $750,000.
Failure to Diagnose Statute of Limitations
A statute of limitations is a law that strictly limits the amount of time a person has to file a claim against another entity. Each state governs its statutes independently and may have different limitations for different types of cases. There are also some exceptions to the law including when minors are involved, so it is important to work with an experienced attorney who can ensure your case is correctly filed within the proper time constraints.
Failure to diagnose falls under the statute of medical malpractice. California law states that a plaintiff must file their lawsuit within one year of discovery of the malpractice or within three years of the date the malpractice took place, whichever comes first. In the case of cancer misdiagnosis, the statute of limitations begins as soon as the patient learns of the error so it is important to act quickly.
Potential Damages
Patients who are victims of cancer misdiagnosis are entitled to claim both economic and non-economic damages in their lawsuit. Economic damages account for any costs or financial losses that can and will be incurred due to injury or death including hospital bills, prescriptions, and emergency medical support. Non-economic damages can be much more challenging to measure and account for emotional traumas, bodily scarring or disfigurement, and pain and suffering.
For decades, California legislators have been pushing to raise caps on pain and suffering awards in an effort to modernize the existing MICRA laws to cover the inflation of medical and insurance costs. With the passing of AB35 in May 2022, the new bill will also allow victims of misdiagnosis to potentially stack damages involving multiple entities, whether that be numerous doctors or also include healthcare institutions or unaffiliated entities. For example, if a non-death misdiagnosis case involves the negligence of two doctors and a hospital, the cap would be $350,000 for each of the defendants, reaching a potential cap of $1.05 million in damages.
How We Can Help
Bostwick & Peterson is a nationally recognized law firm that specializes in medical malpractice cases. For over 40 years, we have been protecting to rights of patients and helping them receive fair and just compensation for injuries they received due to negligence. Our firm has obtained a significant number of settlements and vertices for their clients and holds the record for the highest medical malpractice settlement in California history, totaling $17 million.
If you or a family member have been the victim of a cancer misdiagnosis do not hesitate to contact our team of experienced medical malpractice attorneys for a free consultation. We have the resources to thoroughly investigate and build your case while you focus on recovery.
