Cellulitis treated as an abscess: when a misdiagnosis is malpractice

Attorney Answer

Whether you have a malpractice claim depends less on the wrong diagnosis than on what it cost you. California requires an expert to say the doctor fell below the standard of care, and that the error more likely than not caused harm that correct, timely treatment would have avoided. If the infection spread while you were on the wrong medicine, that is something an expert can assess. If correct treatment began soon after the results arrived and the infection cleared with no added harm, there may be no damages to recover, and a complaint to the Medical Board of California is the realistic step. Either way, a short deadline may already be running.

What a claim has to prove. The standard of care in professional negligence must be proved by expert testimony unless what the doctor should have done is within ordinary common knowledge: Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal. 4th 992 (1994). Causation needs an expert too. In Dumas v. Cooney, 235 Cal. App. 3d 1593 (1991), a delayed-diagnosis case, the Court of Appeal held that a patient must show to a reasonable medical probability, more likely than not, that the delay caused the harm, and declined to compensate a lost chance. So the question for an expert is what a week on the wrong medicine actually did.

The deadline. Cal. Code Civ. Proc. § 340.5:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.

And Cal. Code Civ. Proc. § 364(a):

(a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

What a lawyer would charge. In a malpractice case, California limits a lawyer's contingency fee. Cal. Bus. & Prof. Code § 6146(a):

(1) Twenty-five percent of the dollar amount recovered if the recovery is pursuant to settlement agreement and release of all claims executed by all parties thereto prior to a civil complaint or demand for arbitration being filed.

(2) Thirty-three percent of the dollar amount recovered if the recovery is pursuant to settlement, arbitration, or judgment after a civil complaint or demand for arbitration is filed.

The Medical Board. The Board investigates complaints from patients. Cal. Bus. & Prof. Code § 2220:

(a) Investigating complaints from the public, from other licensees, from health care facilities, or from the board that a physician and surgeon may be guilty of unprofessional conduct.

A complaint can lead to discipline, not to money for you. The Board's standard for discipline on repeated negligence treats a wrong diagnosis and the treatment that fits it as one act. Cal. Bus. & Prof. Code § 2234(c)(1):

(1) An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act.

The rough handling you describe is a separate concern; raise it with the Board and with a lawyer as well.

What you can do

1. Ask the clinic for your complete records from the visit, including the test result and the date it was reported to you.

2. Keep the prescriptions and every record of the treatment you received once the cellulitis was confirmed.

3. Make a note of the dates: the visit, when the results arrived, and when correct treatment began.

4. If you want the Board to look at the doctor's conduct, file a complaint with the Medical Board of California; it does not award compensation.

5. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Under Cal. Code Civ. Proc. § 340.5, a malpractice suit must be filed within one year after you discovered, or should have discovered, the injury, or three years after the injury, whichever comes first, and § 364 requires 90 days' written notice before suing. When the one-year period started depends on your dates, so take them to a lawyer now rather than counting them yourself.