Suing a Healthcare Professional for Misdiagnosis or Failure to Diagnose

When your doctor misdiagnoses or fails to diagnose an illness, are they liable?

When you or a beloved member of your family is sick and you’re anxiously waiting in an empty examination room, the doctor can appear like a savior in a white coat.

But doctors are human and sometimes they make mistakes.

Medical malpractice occurs when a patient is harmed because a health care professional deviates from the accepted standard of care.

The 2 most common acts that result in medical malpractice claims are misdiagnosis of an illness and failure to diagnose an illness.

What is a misdiagnosis?

The first step to getting better is knowing the problem. A proper diagnosis leads to an appropriate treatment plan, which sets you on the road to recovery.

A misdiagnosis is when a doctor or other healthcare professional examines a patient but reaches the wrong conclusion about the patient’s condition. For example, if a man comes into the doctor’s office with chest pain and the doctor diagnosis the ailment as indigestion when, in fact, the pain is an early symptom of a heart attack, then this is a case of misdiagnosis.

Researchers have identified 3 major disease categories (deemed “The Big 3”) that account for almost 75% of misdiagnoses.

• Cancer (37%)
• Vascular events (22%)
• Infections (13%)

Within these 3 categories, the most commonly misdiagnosed illnesses are:

Why does doctor misdiagnosis happen?

There are several reasons why a healthcare professional may misdiagnose an illness. The most common reasons include:

• Poor communication between the healthcare professional and the patient
• Poor communication between healthcare professionals (such as failing to notify treating physicians of critical test results)
• Failure to collect or consider important information (such as failing to order diagnostic testing or to consult with a specialist)
• Misinterpretation of diagnostic tests or studies
• Over-reliance on negative findings in test results on patients with continued symptoms
• Patient factors (such as failing to disclose relevant information)

Darrell Ranum, Vice President of Patient Safety with The Doctor’s Company and author of a recent study on medical malpractice, emphasizes the importance of communicating with patients to avoid misdiagnosing them:

“Our research sheds light on the need to provide detailed explanations to parents or guardians regarding symptoms that should prompt immediate care when the child is sent home... It’s also particularly important that physicians keep language and cultural barriers in mind when providing these detailed explanations.”

What is failure to diagnose?

Misdiagnosis and failure to diagnose are 2 sides of the same coin. To put it simply, misdiagnosis refers to an incident where a doctor gives their patient the wrong diagnosis. Failure to diagnose, on the other hand, occurs when a doctor gives their patient a clean bill of health when in fact the patient is suffering from an illness.

Let’s take a look at a couple of real-life case examples:

How do you prove misdiagnosis or failure to diagnose?

In order to establish a medical malpractice claim based on misdiagnosis or a failure to diagnose, you must prove the following 2 elements:

• The healthcare professional failed to exercise the degree of care and skill expected of a reasonable healthcare professional in the profession, and
• Such failure was the proximate cause of your injury.

In other words, just because a healthcare professional misdiagnoses your illness or fails to diagnose your illness doesn’t mean they’ve committed medical malpractice. The reality is that some illnesses are tricky to diagnose. Some illnesses cause little or no pain, while others progress over time making it difficult to make a diagnosis based on a single visit.

If the mistake was one that a reasonable healthcare professional would make, there’s no malpractice. As a result, the focus of most medical malpractice cases is on what a reasonable healthcare professional would have done in a specific set of circumstances.

Though most medical malpractice cases focus on what a reasonable healthcare professional would have done, don’t overlook the causation element.

In order to succeed in a medical malpractice case, you first need to prove that you suffered some harm. If your doctor failed to diagnose a blood clot, but the clot was discovered and removed a week later without issue, your doctor’s failure to diagnose didn’t cause any harm.

Who can be sued?

In most states, a medical malpractice claim can be brought against any licensed health care professional, including:

The standard a healthcare professional will be held to is that of a reasonable healthcare professional in the profession. So, for example, a physician’s actions won’t be judged according to what a reasonable physician’s assistant would do under the circumstances, nor would a nurse’s actions be judged based on what a physician would do under the circumstances. 

What damages can be recovered?

Though all states are different, most states allow an injured patient to recover:

• Economic damages. Economic damages represent damages that have a fairly objective price tag, such as medical expenses and lost wages.
• Non-economic damages. Non-economic damages represent damages that don’t have an objective price tag, such as pain and suffering and emotional distress.

When it comes to medical malpractice claims, many states have specific damage caps. For example, in California, non-economic damages are capped at $250,000 in medical malpractice cases. This means that even if a jury determines that a plaintiff’s non-economic damages are worth $500,000, the plaintiff can only recover $250,000.

Do you need a medical malpractice attorney?

Medical malpractice cases tend to be complex and expensive. In almost all cases, multiple experts need to be retained to testify about the healthcare professional’s actions and the patient’s condition. What’s more, healthcare professionals have malpractice insurance. This means that if you file a lawsuit, there’s an insurance company armed with attorneys and medical experts ready to contest your claim.

On top of all this, most states have specific laws that require plaintiffs to take certain steps that they don’t need to take in a typical personal injury lawsuit. For example, plaintiffs in Arizona must file a preliminary expert opinion (along with their complaint) explaining the factual basis for each claim against the healthcare professional, as well as the acts, errors, or omissions that the expert considers to be a violation of the medical standard of care.

How can you improve your chances of receiving the correct diagnosis?

In a perfect world, you receive the proper diagnosis at the right time and don’t have to file a medical malpractice claim. Fortunately, there are a few things you can do to increase the chances of this happening:

• Ask questions. Your doctor is the medical expert, but that doesn’t mean you can’t ask them to explain tests, medicines, treatments, and anything else you don’t understand. Sometimes, talking everything through can help minimize misunderstandings that lead to misdiagnosis.
• Tell the truth. It’s not uncommon for patients to feel uncomfortable about disclosing certain personal details to their medical providers. However, medical providers need to have all the pertinent information in order to make a proper diagnosis.
• Trust your instincts. Speak up if you feel like your doctor is missing something or you’re not being taken seriously. If you’re not satisfied, get a second opinion from a different doctor or ask to be referred to a specialist.

Need more information about medical malpractice claims? The following articles may help:

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• Medical malpractice overview
• 5 of the most common types of birth injury
• Don't become the next medical malpractice victim
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