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Can a doctor be sued for emotional distress due to an incorrect diagnosis of miscarriage, when in fact, the fetus is fine?

Omaha, NE |

I went into an emergency room on a Thursday with heavy bleeding. I was in my 12th week of pregnancy. They perfomred an ultrasound and diagnosed abruptia and sent me home, saying there was nothing that could be done, but to pray and hope. I returned 2 days later (Saturday) with mild but continuous cramping. The doctor was unable to find a fetal heartrate (after looking for only about 2 minutes), then did a pelvic exam and said my cervix was open. She made it clear to me that this was a miscarriage. She ordered no other tests. I was sent home and told to schedule an appt. with my OBGYN as soon as possible. When I saw my OBGYN on the following Tuesday, I had another ultrasound and was informed that the baby was alive and healthy. There was no sign of abuptia, and cervix was closed.

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Attorney answers 3

Best Answer

Whether you could sue the doctor or not is unclear based on the information you have stated. This is because there is a lot of medical detail that would impact the answer. However, the next issue is that there is likely not enough in damages to justify a lawsuit. Typically, a medical lawsuit will cost between $50,000 and up to bring to trial. Thus, the potential recovery must be sufficient to pay your attorneys fees and the expenses before you will receive a dime. If you work a few scenarios you will quickly see that the damages must be pretty large to justify the time and expense. The bigger picture for you, in my opinion, is that you went through a very upsetting time during a period in your life that is extra emotional anyway. I am pleased you don't have abruptio placenta and your baby is alive and healthy. It is so much better to have a baby that is alive and healthy than to have a good lawsuit. this is all just my opinion of course. I encourage you to seek other legal opinions before you make a final decision on whether to proceed with a lasuit. As always, keep in mind that there is a time deadline to filing a lawsuit so you should contact another attorney immediately should you want to pursue a lawsuit. Good luck to you and your family.


Probably not. However, check with an experienced medical malpractice lawyer in your area.


The law probably does not permit you to sue for only mental distress, but you should consult with an experienced personal injury attorney in your jurisdiction.

The author of this post is licensed to practice law in the District of Columbia, Maryland, and Virginia. This post is intended as general information only, and is not provided as legal advice in connection with any specific case, and does not create an attorney-client relationship.