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I am an over the road trucker. I was misdiagnoised for sleep apnea, required to use a cpap…

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I am an over the...
I am an over the road trucker. I was misdiagnoised for sleep apnea, required to use a cpap machine. I went to my ENT and he told me not to use the cpap machine and to use a nasal spray to relieve congestion in my nasal passage. It took 7 weeks to get back to work and had to buy a cpap machine. I went thur a DOT physical and went thur a wakefulness and passed and was OK to drive again. Im out 7 weeks pay and $900 for the cpap machine. Sleep Point is the company my company used for the sleep studies and we bought the cpap machine from the company I drive for. Do i have a legit claim for the lost wages and refund of the cpap machine?
Submitted: 6 years ago.Category: California Employment Law
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Answered in 26 minutes by:
2/27/2012
California Employment Lawyer: Patrick, Esq., Lawyer replied 6 years ago
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 14,040
Experience: Significant experience in all areas of employment law.
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Hello and thank you for entrusting me to answer your question. I'm sorry to hear about your missed time from work and lost wages.

While the damages you describe are certainly clear, the case for liability is much less so. This is because medical providers are afforded a great deal of latitude is making diagnoses and treating patients. Not every time that a medical diagnosis proves inaccurate or a treatment measure ineffective has malpractice occurred.

To prove malpractice, the relevant inquiry is whether the treating doctor's care "fell below the relevant standard in the medical community." This is a very difficult standard to prove, and typically requires the retention of an expert witness (another medical professional) to proclaim that the diagnosing provider was negligent.

So, even though your diagnosis may have been incorrect, you would need to prove that the diagnosis was negligent, which is both difficult and expensive to do, since you need to hire an expert.

You may wish to explain to the ENT that his misdiagnosis has cost you a substantial loss of income, and if they pay you the original value of the CPAP machine you would be willing to sign a release on liability for any malpractice claim. Of course, you also run the risk that they would perceive such an offer as a threat and would rescind their offer to purchase the machine from you at all. For this reason, taking the $450 may be the best available option.

I sincerely hope that this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
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