Claiming Compensation for Medical Negligence Failure to Diagnose Fractures
The purpose of this article is to provide important information about claiming compensation for the medical negligence failure to diagnose fractures, including the criteria which must be satisfied in order to take legal action against a hospital or doctor for a failure to diagnose bone fractures.
It is easiest to describe many of the processes involved by using specific examples of bone fractures, although many of the points covered in this article can apply to the misdiagnosis of a fractured bone in any part of the body. For this reason we recommend that you read the whole article to develop a better understanding of what the claims process is likely to involve, how best to proceed with taking legal action to recover fractured bone misdiagnosis compensation and whether it is likely to be worth your while to do so.
After reading this article we strongly advise you to contact a medical negligence solicitor for clarification about whether a compensation claim for a failure to diagnose a fracture is possible. It is better to have a solicitor tell you that a claim cannot be made than to miss the opportunity to be compensated for a mistake made by a medical professional.
The Failure to Diagnose a Tibia Fracture Must Constitute Medical Negligence
In order for a fractured bone misdiagnosis claim to be made against a doctor or hospital, the failure to diagnose a fracture must constitute medical negligence. A missed diagnosis is likely to be classed as medical negligence if a doctor fails to identify the signs of a tibial fracture and does not arrange for an x-ray to be conducted to confirm his or her diagnosis. Medical negligence also covers poor professional performance and incompetence, and even a lack of experience in interpreting x-rays.
It takes a great deal of force to fracture or break the tibia, and this type of bone fracture is therefore most frequently seen in accident victims who have fallen from a height or been involved in road traffic accidents. Although less common, tibial fractures can be caused by a twisting movement from an awkward fall; with relatively little force exerted on the shin. Because of this there is considerable potential for a failure to diagnose bone fractures of the tibia from accidents not typically associated with this type of fracture. The medical negligence failure to diagnose fractures of the tibia is also more likely to occur if medical records are not checked for bone conditions such as osteoporosis prior to a diagnosis being made.
If it can be established and proven ‘on the balance of probabilities’ that the failure to diagnose bone fractures was due to medical negligence for failing to conduct a thorough examination, or for incompetence in the interpretation of diagnostic test results, it should be possible to claim compensation.
A Failure to Diagnose a Scaphoid Fracture Must Have Resulted in Further Injury
In addition to the misdiagnosis constituting medical negligence, a failure to diagnose a fracture must have resulted in further damage being caused in order for a fractured bone misdiagnosis claim to be successful.
The treatment for a scaphoid fracture is usually a wrist to elbow cast, which immobilises the bones to facilitate healing and to prevent deterioration of the fracture. A failure to diagnose a scaphoid fracture would see a different treatment administered, such as strapping the wrist rather than using a hard cast. A failure to diagnose bone fractures in the scaphoid is therefore more likely to result in further injury being sustained.
The failed diagnosis of a bone fracture in the wrist could see the victim inadvertently exacerbate the injury; which would not have been possible had the correct treatment had been provided. In this case, the medical negligence misdiagnosis to diagnose fractures could result in compensation being awarded as the re-injury would have been prevented if the initial diagnosis was correct. If no deterioration in a medical condition has been caused, and recovery time remains broadly the same, a claim is unlikely to be worthwhile pursuing.
Contributory Negligence and Compensation for a Failure to a Diagnose Pelvis Fracture
The compensation amounts that can be recovered in a claim for medical negligence failure to diagnose fractures can be affected by contributory negligence of the plaintiff; which is easily illustrated by the failure to diagnose bone fractures of the pelvis. If a doctor misdiagnoses a pelvic fracture and instructs the patient to refrain from weight bearing activities and this advice is ignored, a claim for the failed diagnosis of a bone fracture may not be successful. The plaintiff will be deemed to have caused the deterioration in the pelvic fracture due to negligence on their own part.
Even if a failure to diagnose a fracture constituted medical negligence, the actions taken by the patient must also be considered when determining whether compensation for the misdiagnosis of a fractured bone can be claimed. Fractured bone misdiagnosis claims can be highly complicated when there is a suggestion of contributory negligence of the plaintiff that has contributed to the severity of the deterioration of a misdiagnosed bone fracture.
Why Claims for the Failure to a Diagnose a Rib Fracture are Commonly Made
A failure to diagnose bone fractures in the ribs may see the same treatment recommended as a muscular injury. The ribs cannot be immobilised by a cast, and the treatment for both fractures and soft tissue injuries is to strap the chest or simply prescribe analgesics and anti-inflammatory medication.
However, the difference between muscular and bone injuries comes from the duration that treatment is administered. A failed diagnosis of a bone fracture of a rib is likely to see the treatment halted some time before the bones have fully healed. This can lead to a resumption of everyday tasks by a patient or a return to sports long before the bones can effectively cope with even relatively small stresses. This can result in the re-fracturing of a partially healed bone or even a full break being sustained.
The misdiagnosis of a fractured bone can also result in serious health complications developing such as bone infections or deep vein thrombosis. Although a correct diagnosis would not prevent these complications, a patient is likely to be warned by a doctor to seek immediate medical attention should they develop; which may otherwise be attributed to the start of a non-related illness. Provided that pain, suffering and loss could have been avoided were it not for a fractured bone misdiagnosis, compensation for the failure to diagnose a fracture of a rib can usually be claimed.
Why a Claim for a Failure to a Diagnose a Patella Fracture Must Be Independently Reviewed
A failure to diagnose bone fractures of the patella may not necessary constitute medical negligence. A stress fracture – a small crack in a bone – may be missed by even a highly experienced doctor, as tiny fractures can be difficult to identify on an x-ray. In order to determine whether the failure to diagnose a fracture of the patella bone constitutes negligence, the case must be independently reviewed and assessed by a medical expert. Only a medical professional can establish whether the actions of a doctor constituted a medical negligence failure to diagnose fractures.
The test which is applied is whether a competent doctor would have been able to identify a patella bone fracture based on the evidence available, and whether under the circumstances further diagnostic tests should have been conducted which would have enabled a correct diagnosis to be made. If it would be unreasonable – or impossible – for a reasonably competent doctor to have correctly diagnosed a fractured bone under the circumstances, compensation cannot be claimed for medical negligence failure to diagnose fractures.
The independent review of a failed diagnosis of a bone fracture will therefore prevent a case from being pursued which cannot be won, and if a claim for the misdiagnosis of a fractured bone is possible the strength of the case can be established before the decision to claim is made by the plaintiff.
Legal Processes Involved in an Injury Claim for a Failure to Diagnose a Fibula Fracture
A full investigation of a potential claim for a failure to diagnose a fracture of the fibula must be conducted by both the HSE and a medical negligence solicitor before it is initiated. The failure to diagnose bone fractures in the lower leg may constitute negligence but not necessarily on the part of the doctor. Fault may lie with a radiographer for an error made when taking x-rays or hospital procedures may be to blame for a failed diagnosis of a bone fracture – such as mislabelling of x-rays. Any and all parties at fault must be identified before a compensation claim can be made.
After the case has been verified by a medical expert, a letter of claim is sent by a solicitor to the negligent third parties responsible for the misdiagnosis of a fractured bone, and the Health Service Executive (HSE) will be notified by the hospital. The case will be assessed before the decision to accept or reject liability will be made. How the case then proceeds will depend on whether liability is accepted.
Will a Claim for a Failure to a Diagnose a Scapula Fracture a Require Litigation?
Whenever compensation for medical negligence failure to diagnose is claimed, the plaintiff should be prepared to have to resort to litigation to resolve the case, as liability for the misdiagnosis of a fractured bone is rarely accepted by the HSE.
A failure to diagnose a scapular fracture is a good case in point as it is a relatively uncommon injury. Due to the low incidence this type of bone injury it may easily be overlooked by a doctor, especially if significant soft tissue injuries or other fractures have not been sustained. A doctor – and the relevant insurance company – may argue that under the circumstances, the failed diagnosis of a bone fracture was reasonable consequence of the lack of other symptoms.
This would mean that the claim for the failure to diagnose a fracture of the scapula would likely have to be litigated in order for fractured bone misdiagnosis compensation to be awarded. In certain situations however, the HSE may agree to settle a claim without court action being required.
Settlement of Injury Compensation for the Failure to Diagnose a Femur Fracture?
A failure to diagnose a fracture of the femur may see the HSE agree to settle a claim, as this type of fracture is usually straightforward to diagnose by a doctor. The failed diagnosis of a bone fracture of the femur is likely to have resulted from medical negligence, and the consequences of a misdiagnosis of a femur fracture can be serious since the femur is a major weight bearing bone.
The HSE or private medical centre at which the medical negligence failure to diagnose fractures occurred may decide to settle a compensation claim for a bone fracture misdiagnosis rather than mounting a potentially expensive defence of the claim if the compensation amounts being claimed are relatively low. Should this be the case, a solicitor will attempt to negotiate an appropriate settlement of compensation for the failure to diagnose bone fractures directly with the negligent party or representatives of their insurance company.
It is possible – although extremely unlikely – that an offer of compensation for the misdiagnosis of a fractured bone will be made without a claim being required. Should you be approached by an insurance company with an offer of compensation for a fractured bone misdiagnosis, you should consult a personal injury solicitor for advice before accepting any payment. The potential for the case to be under-settled is considerable if legal advice is not sought.
General Damages in a Compensation Claim for a Failure to Diagnose a Spine Fracture?
General damages are awarded in claims for the failure to diagnose bone fractures as recompense for pain, suffering and non-financial losses. The calculation of this aspect of compensation in a misdiagnosis of a fractured bone claim can be complex as the pain and suffering caused by the original injury and what was suffered due to the fractured bone misdiagnosis must be established. It is only possible to recover compensation for the degree that an injury has been allowed to deteriorate and additional pain and suffering caused.
A failed diagnosis of a bone fracture in the spine is likely to see considerable compensation awarded for loss of amenity, due to the immobility that results from a serious deterioration in a spinal fracture, and surgery may even be required due to a missed spinal fracture diagnosis. Loss of amenity due to a failure to diagnose a fracture in the spine covers the extension in recovery time, changes in quality of life and even missed opportunities due to the delay in diagnosis and deterioration of the fracture.
Special Damages and Compensation for a Failure to a Diagnose a Vertebra Fracture
Special damages cover the financial losses suffered due to a failure to diagnose bone fractures of vertebrae, which can be considerable in claims for a failure to correctly diagnose a vertebral fracture. A failed diagnosis of a bone fracture in a vertebra can lead to significant deterioration of the fracture, surgery may be required and extended period of work are therefore to be expected. Claims for special damages can increase the total compensation amounts considerably.
A vertebral fractured bone misdiagnosis may result in considerable additional treatment costs and substantial loss of earnings, both of which can be recovered by making a claim for misdiagnosis of a fractured bone under special damages. Provided that a cost associated with the failure to diagnose a fracture can be substantiated, it should be possible to claim back the money spent in addition to making a claim for general damages, and future treatment costs are also recoverable, if known at the time that the claim is commenced.
How Long Will it Take to Receive Compensation for a Failure to a Diagnose Radius Fracture?
Most personal injury claims are settled in approximately six to nine months; however injury claims for medical negligence failure to diagnose fractures invariably take much longer to resolve. A misdiagnosed radial fracture must be investigated by the HSE – and independently by a solicitor – and the case must be reviewed by a medical professional before it can be commenced. Liability is rarely accepted by the HSE for the failed diagnosis of a bone fracture, even with relatively easy to diagnose injuries such as radial fractures.
It is therefore likely that in order for the full entitlement to compensation for the failure to diagnose a fracture to be recovered it will be necessary for the fractured bone misdiagnosis claim to be litigated through the Irish courts. This is likely to delay payment of compensation. Although the misdiagnosis of a fractured bone claim may take many months to be resolved, you should not be deterred from claiming the compensation you are entitled to receive for a radial fracture or any other misdiagnosed bone injury.
The Statute of Limitation Restricts Claims for a Failure to a Diagnose Humerus Fracture
There is a strict time scale for making a claim for a failure to diagnose bone fractures. If you fractured your humerus bone and the injury was misdiagnosed, you have 24 months in order to claim compensation – although the clock does not start until the date you became aware of the misdiagnosis.
A more restrictive time limit is applied by the HSE, as a letter of complaint should be received within 12 months of the medical negligence failure to diagnose fractures in order for an investigation into how a fractured bone misdiagnosis occurred to be conducted. Without an HSE investigation an injury claim for the failure to diagnose a fracture will not be possible. It is therefore important that a letter of complaint is written to the HSE about the failed diagnosis of a bone fracture as soon as possible, and since a claim for a misdiagnosis of a fractured bone can take some time to investigate before it can be made, you should not delay seeking legal advice.
Claiming for a Failure to a Diagnose a Sternum Fracture in a Child
If you have discovered your child has had a sternal fracture misdiagnosed, a claim for fractured bone misdiagnosis compensation can be made although the Statute of Limitations is applied differently. The 24 month time limit still applies but it commences from your child’s eighteenth birthday; as a legal minor cannot make a claim for a failure to diagnose bone fractures personally until the age of consent is reached.
A claim for a failed diagnosis of a bone fracture to the sternum can still be initiated promptly, but only by an adult acting on the as a next friend and pursuing the claim on the child’s behalf. To be accepted as a next friend and to make the claim for a failure to diagnose a fracture, an application must be made to the courts and a judge must authorise the appointment.
The claims process differs from when legal action is taken by an adult to recover compensation for the misdiagnosis of a fractured bone, so it is important that legal advice is sought from a medical negligence solicitor to ensure that the correct procedures are followed.
The Importance of Seeking Prompt Legal Action After a Failed Diagnosis of a Bone Fracture
A number of actions should be taken promptly after medical negligence for the failure to diagnose fractures is established, to ensure the right to make a personal injury claim is not lost. Since no two fractured bone misdiagnosis injury claims are exactly alike it is important that you receive specific legal advice relating to your case, and that you speak with a specialist medical negligence solicitor as soon as possible.
A claim for a failed diagnosis of a bone fracture is not made through the Injuries Board, so compensation amounts – and the right to claim compensation for a failure to diagnose a fracture – need to be assessed by a solicitor. When a solicitor is involved early in the claims process, the probability of a claim for the misdiagnosis of a fractured bone being successful is typically increased and the time taken for compensation to be recovered is reduced.