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What Is a Failure to Diagnose Claim?
A failure to diagnose claim is a medical malpractice lawsuit against a doctor, hospital, or other provider who missed a condition that a reasonably careful provider would have caught, and whose miss left the patient worse off than a timely diagnosis would have.
The injured patient brings the claim. When the missed diagnosis proved fatal, the patient's surviving family can pursue it as a wrongful death case under their state's law.
Not every bad outcome qualifies. The law separates negligence from the honest limits of medicine, and the difference decides the case.
A misdiagnosis or lack of diagnosis by itself is not enough to establish negligence on a doctor's part.
Capable doctors make diagnostic errors. The legal question is whether the doctor acted reasonably and in accordance with standard medical practice.
Doctors are often not held responsible under the law for mistaken diagnoses. To prove medical malpractice, patients need to establish that three things are true:
- There was an existing doctor-patient relationship
- Negligence occurred on the part of the doctor
- The negligence on the doctor's part caused injury to the patient
In most cases the success in suing a doctor for malpractice based on symptom misdiagnosis hinges on the last two elements of proof.
The high-volume, time-pressured environment where diagnostic errors most often happen is the emergency department. Our overview of ER malpractice and emergency-room misdiagnosis walks through EMTALA, the most-missed ED diagnoses, and the recurring triage and discharge breaches.
Lawsuit Legal's attorneys have handled more than 40,000 cases with over $100 million recovered and a 98% recovery rate. Consultations are free at (888) 713-6653, 24 hours a day.
Proving Malpractice and the Differential Diagnosis
Differential diagnosis is a systematic method used to identify a disease based on the patient's symptoms. Once the doctor conducts an evaluation, he or she lists the probable causes in order of likelihood.
A further examination of the patient to determine the strength of the probability of each diagnosis then generally is warranted. They may order tests, request detailed information about the patient's symptoms and medical history, or even refer the patient to a specialist.
The goal is to rule out diseases and causes until just one remains. Because medicine is not a perfect science, this does not always occur.
In a case of misdiagnosis, the patient needs to prove that another doctor would not have misdiagnosed your condition under similar circumstances. Practically, this means you must prove one of the two following things:
- The differential diagnosis list did not contain the correct diagnosis, but another doctor would have included the diagnosis under similar circumstances.
- The correct diagnosis was included on the differential diagnosis list, but the doctor failed to perform the necessary investigation to prove or disprove the viability of the diagnosis.
Definitely Negligent...
Did It Result In Suffering?
Even if negligence is proven, the patient must still prove that the negligence led to an injury or allowed a condition to become worse than it would have been had a correct diagnosis been made.
Many instances of cancer are made more severe by a delayed diagnosis, for example. Negligent delays in determining cancer to be the cause of symptoms can result in treatments not being used when they could have been effective. Mistakes of this nature can take lives. The staging-upgrade theory of damages, the most-litigated cancer types, and the loss-of-chance doctrine recognized in some states are covered in detail on our cancer misdiagnosis lawsuit page.
If the doctor has diagnosed and treated a patient for a condition they do not have, the patient may make a claim for harm in the form of medical problems, stress, anxiety, and financial costs from the unnecessary treatment.
A number of medical treatments go beyond uncomfortable, making matters worse are situations when all the suffering experienced is ultimately proven unnecessary.
- Personal Injury Lawyers
- Auto Accident Injury Lawyers
- Truck Accident Injury Lawyers
- Medical Malpractice Lawyers
- Birth Injury Lawyers
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- Motorcycle Accident Lawyers
- Workers' Compensation Lawyers
- Pedestrian Accident Lawyers
- Fatal Car Accident Lawyers
- Wrongful Death Lawyers
Bad Doctors: More Common
Than You May Think...
Diagnostic mistakes are made by medical professionals in a number of ways, and caused by a number of unfortunate realities in our medical system. Three categories produce a disproportionate share of consequential cases: missed acute myocardial infarction in the ED (particularly atypical presentations in women), missed stroke with the tPA or thrombectomy window closed (particularly posterior circulation and younger-patient strokes), and sepsis recognition failure and the missed hour-1 bundle (particularly in elderly patients with vague presentations).
Common Mistakes Include:
- Wrong diagnosis or misdiagnosis
- Lack of or missed diagnosis
- Delayed diagnosis
- Failure to recognize complications
- Failure to diagnose a related disease
- Failure to diagnose an unrelated disease
Common Causes Include:
- Lack of time with patient
- Drugs & alcohol
- Arrogance
- Ignoring patient concerns
- Incompetence
- Failure to give case time it deserves
What About In Cases Test Results Were The Cause?
In some cases, a doctor may misdiagnose a condition based on faulty results from tests. There are two ways that this can occur:
- Faulty diagnostic equipment
- Human error
While these situations may relieve the doctor from the burden of medical malpractice liability, they may make another person responsible such as the technician responsible for the equipment, hospital or the person who made an error in testing or interpreting the test results.
Review My Case NowWhat Is a Failure to Diagnose Case Worth?
There is no standard figure, and any lawyer who quotes one before reading your records is guessing. Case value turns on what the delay changed: the treatment that became necessary, the treatment that stopped being possible, and the permanence of the harm.
Compensation in these cases typically covers:
- Medical bills for the additional treatment the delay made necessary, past and future
- Lost income and reduced earning capacity
- Physical pain and emotional distress
- In fatal cases, wrongful death damages for the surviving family under state law
A missed cancer that advanced a full stage supports a different recovery than a missed fracture that healed late. The medicine drives the number, which is why the case has to be built on the records rather than on a formula.
How Long Do You Have to File a Failure to Diagnose Lawsuit?
It depends on your state, and the differences are not small. Every state sets its own malpractice filing deadline, some as short as one year, and many states add presuit hurdles (expert affidavits, notice requirements, screening panels) that consume time before a lawsuit can even be filed.
Most states start the clock when the patient discovered the missed diagnosis, or reasonably should have, rather than on the date of the appointment where it was missed. Many pair that discovery rule with an outer limit that bars claims a set number of years after the care itself, no matter when the harm surfaced.
The practical advice is the same everywhere: get a state-specific answer early. A claim that would have been strong can die on the calendar alone.
Talk to a Failure to Diagnose Attorney About Your Case
The records that prove a missed diagnosis (the differential list, the test orders, the follow-up notes) exist right now, and your state's filing deadline is already running against them.
Call (888) 713-6653 or submit the form below for a free case review, any time of day or night.
Patients who brought their symptoms to a doctor deserve an honest answer about whether the miss was negligence, and compensation for everything the delay cost them.
Our attorneys at Lawsuit Legal match the defense expert for expert, reading the chart line by line before anyone talks numbers.
Contact a failure to diagnose lawyer today for your free consultation. You pay nothing unless we win.
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