Can You Sue a Doctor for Misdiagnosis?

When a medical professional makes an erroneous diagnosis, it is understandable that the patient or their family may question whether legal recourse is available to claim compensation from the doctor or the healthcare institution. The answer is affirmative. Legal action can be initiated, but the success of the case depends on the applicable legal standards and the evidence presented before the court.

a) Legal Actions Available

Civil Proceedings can be divided into two main types: tort claims and consumer protection cases.

• A tort claim may be filed under Section 420 of the Thai Civil and Commercial Code to seek compensation for harm resulting from the physician’s negligence.

• A consumer protection case may also be pursued under Section 20 of the Consumer Case Procedure Act B.E. 2551 (2008). The lawsuit must first be submitted to the Consumer Division of the Court of Appeal, which will determine whether the case qualifies as a consumer case.

One key difference between general civil cases and consumer cases lies in the burden of proof.

Criminal Proceedings may be brought under:

• Section 291 of the Thai Penal Code, in cases of negligent acts resulting in death.

• Section 300, in cases of negligent acts causing serious bodily harm.

Professional disciplinary complaints may also be filed with the Medical Council of Thailand or other relevant professional regulatory bodies. Under Section 32 of the Medical Profession Act B.E. 2525 (1982), any person who suffers harm as a result of a physician’s unethical conduct may submit a formal complaint to the Medical Council. If the physician is found guilty, they may face disciplinary actions such as a warning, suspension, or revocation of their medical license.

The determination of whether the conduct constitutes a violation, and what sanction is appropriate, rests within the discretion of the Medical Council’s committee. The committee evaluates the physician’s actions based on the Regulation of the Medical Council on the Preservation of Professional Ethics B.E. 2565, and imposes the appropriate disciplinary measure in accordance with Section 39 of the Medical Profession Act B.E. 2525.

Moreover, legal action can be taken under Section 8 of the National Health Act B.E. 2550 (2007) if the physician fails to provide the patient with sufficient information prior to treatment. If the patient suffers harm due to uninformed consent, the physician may face not only liability but also potential revocation of their license.

Ultimately, the choice of legal pathway depends on the intentions of the injured party, whether they seek criminal penalties, monetary compensation, or professional disciplinary measures.

b) Who Has the Right to Sue

If a patient suffers harm, whether physical injury, permanent disability, or death, as a direct result of the misdiagnosis, the patient or their legal representatives have the right to pursue claims for damages. Legal proceedings can be brought against either the individual physician responsible or the hospital where the treatment was provided.

c) Not Every Misdiagnosis Constitutes Medical Negligence

Not every case of misdiagnosis is considered a fault of the physician. If the doctor has fulfilled their responsibilities with due care under the circumstances and with the information available at that time, according to professional standards, the court may rule to dismiss the case despite the error. For example, in Supreme Court Judgment No. 5009/2019, the physician was acquitted because negligence could not be proven.

However, if the damage clearly results from the physician’s lack of care, such as providing treatment while intoxicated or neglecting basic examinations, the court will hold the doctor liable. This was demonstrated in Supreme Court Judgment No. 7452/1998, where the court found the physician guilty of gross negligence.

d) Legal Considerations in Filing a Lawsuit for Misdiagnosis

Whether a lawsuit will be accepted and considered by the court depends on an examination of several factors. The court will assess whether the doctor exercised due care in diagnosing and treating the patient according to professional standards. It will also evaluate if there was any lack of diligence or negligence, such as failure to perform necessary physical examinations, negligence in care, or making decisions without sufficient information. Ultimately, the court will determine if the harm resulted from the doctor's actual negligence.

e) The Burden of Proof Lies with the Plaintiff

In cases involving medical misdiagnosis, the burden of proof typically lies with the injured party or plaintiff, as stipulated in Section 84/1 of the Civil Procedure Code. This section states that the party making a claim bears the responsibility to collect and present evidence to the court. Such evidence may include medical records, test results, expert medical opinions, or witness testimonies. All of these serve as crucial proof in determining whether the physician acted negligently. If clear evidence cannot be presented, the case may be dismissed.

This principle applies to both civil and criminal cases related to tortious acts. However, if the injured party prefers not to bear the burden of proof, they may choose to proceed under the Consumer Case Procedure Act. Section 29 of this Act places the responsibility of proof on the business operator, such as a private hospital.

f) Considerations Before Filing a Lawsuit

Before deciding to file a lawsuit, it is important to prepare all necessary evidence thoroughly and seek advice from experts in both legal and medical fields. Legal proceedings involve costs and time, so the likelihood of success should be carefully weighed before making a decision.

Although misdiagnosis can be the basis for a lawsuit, the outcome depends on proving to the court that the harm was caused by actual negligence on the part of the doctor, not merely an honest mistake made in accordance with the professional standards expected.

Conclusion

In the field of medicine, diagnostic errors can arise even when doctors act with diligence and care. It is important for clients and their families to understand that not every instance of misdiagnosis makes a physician legally liable. When a doctor follows established medical standards, exercises reasonable care, and bases decisions on available information, the law does not generally consider an honest mistake to be negligence.

However, if injury or damage results from a lack of caution, neglect of essential medical protocols, or conduct below professional norms, the law provides an avenue for affected patients to seek legal redress. Success in such claims depends primarily on demonstrating through credible evidence that the harm was a direct result of professional negligence rather than an unavoidable error.

Before pursuing legal action, those concerned should thoroughly gather relevant facts and documentation, and seek advice from both medical and legal professionals to evaluate their options and minimize further complications.

Ultimately, Thai law enables those harmed by genuine medical negligence to seek justice, but the key to a successful case lies in proving that the injury stems from a breach of professional duty, not merely the complexity or limitations inherent to medical practice. By understanding both the applicable legal principles and medical standards, patients and their families can better safeguard their rights and make informed decisions in challenging circumstances.