I have been seeing the same doctor for at least 10 years. She has performed at least 5 physical exams (including pap smears) on me during that time. Recently, a separate doctor diagnosed my fiancee and myself with genital warts. I am the only sexual partner he has ever had, and he is the only partner I have had in the last 4 years. In those last 4 years, I have had at least one pap smear/physical exam from my original doctor, and she never informed me of this condition. Can I sue her for malpractice, since she never bothered to inform me of an STD that I have clearly had for several years, and after she has examined me several times in those years? If so, what do I need to prove her malpractice?
Probably not. The first thing one needs in order to sue a doctor is the testimony of another doctor that your doctor violated the standard of care. Is it your conclusion that you had these warts for years or your doctor's? You will need to have the doctor put it in affidavit form if you want to have initial access to the court on this case.
But more importantly, if you and he did not notice you have this problem for these years, what are your damages? Are the warts somehow harder to cure now because of this delay? The value in a lawsuit is not in how wrong the defendant was -- it is in how injured the plaintiff is. So -- what did you lost as a result of this delay?
Sorry - doesn't look good.
This type of case requires money up front to pay for experts, and potentially a lot of attorney time, so attorneys will not take it unless they see a strong chance of winning a substantial amount of money.
Your attorney will get your medical records from the doctor with your signed release, and your expert (who would have to be an actual doctor) will examine it. If the expert does not find malpractice, you are not allowed to file the lawsuit, until you find a different expert that does agree with you.
The other side will defend, in part, by showing the doctor's notes, including physical examination by the doctor, lack of complaint by you, and possibly actual test results, thus allegedly showing that the condition did not exist at the time of the examination. They may ridicule your claims of total exclusivity by both partners, the type of claim that can often be a lie even when there is no money at stake. I speculate they might even try to look into whether someone can get the warts by means other than sexual contact, such as by using someone else's towel (I don't know if that is possible or not).
And what about the fiancee's doctor? If that doctor did not find the condition in him, that would be argued by the other side to establish that the condition was recently acquired, or at least that your doctor's failure to find the condition in you was not malpractice.
Finally, you will have to establish damages. The only compensation you can get would be for damages you suffered because of the delay in your learning of the condition. Only an actual doctor can say whether that delay changed the disease from curable to incurable, or otherwise made it much worse than it would otherwise be.
You can consult with a local attorney or law firm that routinely handles lawsuits in that county, and see if they think enough of your case to devote the time and money to it.
Instead, you might want to go to the doctor portion of avvo.com, and ask doctors how long it takes for a person, after being infected with the microorganism that causes the warts, to develop symptoms. If they say it is less than 4 years, then winning a lawsuit does not seem too likely.
Contact me at 248-399-6930 for a free consultation. You and I do not have an attorney-client relationship formed by our communications on this website. Advice given by me on this website is general advice based on partial information. You should not rely on any advice given without first hiring a lawyer in the area where the case is pending, and providing that lawyer with full information.
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