Why You Need an Experienced Lawyer to Negotiate Your Misdiagnosed Stroke Claim

Medical Malpractice

By David Carnes, Staff Writer

A stroke occurs when a large number of brain cells die due to oxygen starvation. An ischemic stroke (representing the majority of strokes) is caused by a blood clot in the brain, while a hemorrhagic stroke occurs when a blood vessel bursts in the brain. The University of Maryland reports that over 700,000 strokes occur each year, half of which result in permanent disability.

If you or a loved one suffered serious harm after a doctor failed to diagnose a stroke in its early stages, you may have a claim for damages.  However, such claims are complex and require a broad set of legal skills and medical knowledge as well as the help of an experienced medical malpractice lawyer. 

How Strokes are Misdiagnosed

A misdiagnosed stroke can greatly complicate the consequences of a stroke, resulting in a victim left unnecessarily disabled or even dead. Misdiagnosis can also leave stroke survivors vulnerable to a second (perhaps fatal) stroke. Although stroke misdiagnoses can occur for a variety of reasons, a few causes are far more prevalent than others:

  • The patient is young. Misdiagnosis occurs because certain stroke symptoms can resemble other conditions, and because doctors often do not anticipate that a young person will suffer a stroke.
  • Misinterpretation of radiology or other test results.
  • Unnecessary delays in diagnostic testing.
  • Diagnosis of a related condition such as a trans-ischemic attack (TIA).

What You Have to Prove

Negotiating with a defendant or an insurance carrier for a settlement has much in common with winning a lawsuit – you must prove every element of your claim with evidence. In a misdiagnosed stroke claim, you must prove the following four elements:

  • Duty: Because of his advanced training, a medical professional’s duty of care to his patients is much higher than, for example, the duty of care (to drive safely) that the same professional might owe to another motorist while driving home from work. Since the term “duty of care” is inherently ambiguous, however, legal expertise might be needed to determine exactly what the legal duty of care was in your particular case.
  • Breach of duty: A misdiagnosed stroke claim must be framed in terms of exactly what the caregiver did or didn’t do that failed to meet the applicable standard of care. This decision is based on the specific facts of each individual case.
  • Causation: You must prove that the breach of duty actually caused your damages. The defendant might counter your claim of causation by, for example, asserting that although your stroke was misdiagnosed, your condition would have been exactly the same as it is even if your stroke had been promptly diagnosed.
  • Damages: You must prove every penny of your damages. If your claim is valid, you may be entitled to recover for past and present medical bills, future medical expenses, lost work time (or lost career if you are permanently disabled), out-of-pocket expenses such as travel expenses and child care, and an amount for intangible psychological distress such as pain and mental anguish that could very well exceed the sum total of your tangible losses.   

Even negotiating a settlement will do you only so much good if you receive an inadequate settlement amount. If you have become permanently disabled because of a stroke, the actual amount you are entitled to could be enormous (six or even seven figures). Attempting to represent yourself at the settlement table could reduce your recovery to a fraction of what you might receive if you were represented by a competent and experienced attorney. 

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