When the doctor makes a wrong diagnosis, the patient can suffer considerable physical and psychological damage. All these prejudices are susceptible to compensation if they result from an error of the health care professional, guilty of not having correctly framed the disease. The compensation can be requested either directly to the doctor or to the health facility where the professional operates. This choice falls on the injured party and has different consequences. So let’s see in detail who compensates the patient in case of misdiagnosis.
When does the right to compensation arise?
The right to compensation arises whenever the patient suffers a loss due to the error of the doctor. If we consider, therefore, the time of diagnosis, we can ask for damages when the professional makes a mistake in identifying the pathology actually present. Errors can be different:
the doctor certifies a pathology different from the one that really afflicts the patient;
the doctor affirms the non-existence of the disease actually present (so-called “false negative”);
the doctor diagnoses a pathology that in reality does not exist (“false positive”);
the doctor culpably delays the diagnosis, causing significant damage to the patient’s health.
It is clear that, in order to be able to claim compensation, the patient must have suffered real harm. The damages that can be compensated can be both physical and psychological. For example, if the doctor delays making the diagnosis or totally misses the identification of the disease, the patient could suffer very serious consequences related to the state of progress of the disease (and the fact that it has not been adequately addressed through the fault of the health care professional).
Again, in the case of false positives, the wrong news about the presence of a pathology (in reality non-existent) can cause stress, anxiety, significant changes in the pace of life, depression and so on in the subject: in practice, psychological damage also susceptible to compensation.
Who should be asked for compensation?
The patient can also sue, alternatively:
the public or private health facility to which the patient has turned and where the professional has worked;
the doctor who made the mistake;
This choice has important consequences from the point of view of the applicable legislation .
Compensation requested from the clinic
If the patient claims compensation from the health care facility will enjoy significant benefits, because:
the clinic is certainly more “capacious” than the physical doctor-person: if the damage is considerable, claiming compensation directly to the professional would entail the risk of not obtaining it (because perhaps the doctor does not actually have the money needed); the limitation period is longer: ten years; the discipline of the burden of proof is all to the advantage of the patient: the latter just has to attach the existence of a relationship with the structure (for example, hospitalization in the same) and claim to have suffered damage because of the wrong diagnosis. It will then be up to the clinic to prove that the diagnosis was correct (or that the damage was not caused by the error of the healthcare professional).
The discipline described above is also valid if the doctor we have approached is not an employee of the facility but has an agreement with it.
Compensation requested from the doctor
If, on the other hand, the patient claims damages directly from the doctor who made the error, a different rule will apply . In particular:
The limitation period is shorter: you only have five years to claim compensation;
The burden of proof also falls on the patient himself: it is the patient who must prove, in addition to the existence of the damage, that it actually resulted from the professional’s error;
the concrete possibility of obtaining the money will be more remote, because the patient will only be able to count on the economic resources of the healthcare provider (it should be considered that these are often very important sums).
Is it possible to ask for compensation from the insurance company?
Since 2017, the law requires “public and private health and social care facilities”, as well as individual professionals, to take out an insurance policy for damage caused to third parties. The purpose of this obligation is to ensure effective financial relief for patients who are victims of medical errors . In the event of a misdiagnosis, therefore, the patient can directly sue the insurance company that guarantees the clinic or the doctor (within the limits of the sums provided for in the insurance contract stipulated). Healthcare facilities are obliged to publish, on their websites, the name of the insurance company with which they have signed the contract.
What to do before claiming damages?
Before bringing a civil action for damages, the law obliges the patient:
to seek technical advice for the prior settlement of the dispute; alternatively, to carry out the mediation process. These are preliminary obligations with respect to the actual process, provided by law to attempt a comparison between the parties, as well as assess and quantify the damage suffered in order to settle the dispute amicably.
The law in force allows the patient to sue both the health facility where the doctor worked and the latter directly: it is usually more advantageous to file a claim for compensation with the local health authority or the private clinic, both because it has more financial resources to cover the damage, and because the burden of proof (relating to the demonstration that there was no fault in the conduct of the doctor) is borne by the latter.
On the other hand, the latest reforms, precisely to lighten the position of the doctor, have made it more difficult to sue the latter directly, since it is the patient who must prove, in addition to the damage suffered, also the fact that it is due to the error of the doctor.
Finally, we must not forget that the law provides for a form of compulsory insurance for health facilities and doctors, aimed at compensating cases of malpractice to the detriment of patients: it follows that in cases of misdiagnosis, patients can sue the insurance company directly, obtaining more rapid relief of their claims.