Can I Sue My Doctor for the Wrong Diagnosis?

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 What Is Failure to Diagnose?

Failure to diagnose is a specific form of medical malpractice, in which a doctor fails to take the proper steps in order to determine the nature of the patient’s medical problem. The physician completely fails to properly diagnose or detect an existing condition. An example of this would be if the patient may be suffering from various symptoms, but the doctor misses the connection between the symptoms and the underlying condition.

Medical malpractice is defined as the negligence of a healthcare professional which leads to the injury of a patient to whom they owe a duty of care. This could include doctors, nurses, and psychologists, to name a few.

Incorrectly diagnosing a patient, or medical misdiagnosis, is included in the definition for failure to diagnose. Medical misdiagnosis commonly refers to a physician’s failure or delay in properly diagnosing a patient. This could be actionable at law if the misdiagnosis resulted in injury to the patient, or an unnecessary progression of the disease in question. As a medical professional, they are held to a higher standard of care than other professions. Because of this, any deviation could result in them being held liable for medical malpractice.

What Are the Steps to Take to Sue a Doctor for Failure to Diagnose?

You may seek legal action against a doctor for failing to diagnose you. Before doing so, it is important to understand who may be liable, and therefore sued, as well as the standard of proof required for a successful lawsuit.

A physician will generally be held to the standard of proof that corresponds to the standards set by their particular field of practice. Meaning, a nurse would likely have a lower standard than a physician, and a physician would generally have a lower standard than that of a surgeon. However, the required proof could differentiate according to each individual patient’s circumstances.

An example of this would be if a physician fails to diagnose a disease that is known to be easy to diagnose or detect. The physician could be held liable for failure to diagnose, or medical misdiagnosis. However, if the medical standards dictate that a particular disease is very difficult to diagnose, the physician may be held to different standards when issuing a diagnosis.

Medical malpractice liability, which can include failure to diagnose, can often involve more than one party. It is possible for medical malpractice liability to be split between both a doctor and nurse whose negligence caused the injury. An example of this would be if incorrect instructions were given, or if one professional failed to correct the other. In such cases there may be a chance that both parties can be held liable. It is possible to sue a hospital for wrong diagnosis, especially in cases where the overall policy or quality of care of the hospital is substandard.

The elements which must be established in order to prove liability for medical malpractice, such as failure to diagnose, include:

  • The health professional had a professional relationship with the patient, and therefore owed them a duty of care;
  • The health professional was negligent in some aspect of the patient’s treatment. Or, they failed to meet the standard of care for their profession;
  • Their negligence caused injury to the patient; and
  • This injury resulted in measurable damages to the patient, such as disability, physical pain, mental pain and suffering, and/or loss of income.

Additionally, if you wish to sue a hospital for wrong diagnosis, the hospital’s negligence in training or supervising the professional responsible for the malpractice must be proven. Local, state or federal agencies that operate hospitals could also be included in a lawsuit for medical malpractice or failure to diagnose.

What Do I Need to Show in Order to Prove My Doctor’s Failure to Diagnose?

To support a hospital misdiagnosis claim, you will need to provide ample and sufficient evidence. Some examples of evidence may include, but not be limited to:

  • Medical records;
  • Doctor’s notes from the responsible physician as well as others, if a second opinion was pursued;
  • Witness statements;
  • Photographic or video documentation; and
  • Copies of correspondence, such as emails and voicemails.

You must be able to show that the doctor or hospital was negligent in failing to diagnose your problem. Additionally, you must show that their negligence caused you measurable harm. In order to do so, you must prove that had the doctor diagnosed you properly, you would not have suffered your current harm, or that you would not have suffered as seriously.

An example of this would be if you came in with appendicitis. Your doctor failed to diagnose it, and your appendix later burst. It is possible that you could show that your harm was caused by the doctor’s failure to diagnose.

As previously discussed at length, you must also prove that the doctor acted negligently. The doctor acted negligently if they:

  • Failed to ask you certain questions;
  • Forgot to send the blood test to the proper lab;
  • Gave a fake name for your illness; and/or
  • Other practices which a similar doctor with the same experience would never have done.

In order to prove both of these criteria, you will need to provide proof that a reasonable doctor would have recognized your medical problem from your symptoms, and diagnosed you appropriately.

What Are Some of the Difficulties with Failure to Diagnose Cases?

It can be difficult to prove failure to diagnose, for many reasons. Any medical problem that you had when you first went to the doctor was likely to cause you some harm, even if promptly diagnosed and treated. As such, if the harm you suffered would have occurred even if the doctor had not failed to diagnose your medical problem, you cannot claim that their negligence caused your harm.

You may not have seen the correct specialist. More than one body system can give the same symptom, which makes it difficult to correctly diagnose a condition. Also, you may have withheld information from the doctor, either intentionally or unintentionally. For instance, you may have given misleading information to the doctor, which might have aided or hindered the doctor’s ability to correctly diagnose the problem. An example of this would be if you tell the doctor that you don’t smoke even though you do. The doctor may not be able to properly diagnose that you have developed lung cancer or other respiratory illnesses because they are basing their investigation on false information.

If the doctor’s mistake was one that a reasonable doctor would make, they have not acted negligently, and have not committed medical malpractice. It is common that when a doctor fails to diagnose a medical problem, they may mistake the problem for something else, and attempt to treat that instead. Likewise, if the medical problem is extremely rare, unknown, or difficult to identify, then a proper diagnosis may not be possible.

Additionally, there are some defenses that the doctor or hospital may raise. The most common of these defenses would be contributory negligence, in which they claim that they are not solely reliable for the patient’s injuries due to the fact that the patient contributed to their injury through their own negligence. Another common defense is that the statute of limitations on taking legal action has run out, or that there is an absence of causation.

Do I Need a Lawyer for my Failure to Diagnose Case?

If you are involved in a failure to diagnose lawsuit, you should consult with a skilled and knowledgeable personal injury lawyer as soon as possible. An experienced personal injury attorney can review the facts of your case, as well as help you gather sufficient evidence to support your claim. Finally, an attorney can file a lawsuit on your behalf, and represent you in court as needed.


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