Medical Malpractice When it Comes to Misdiagnosis and Failure to Diagnose

Can I sue my doctor for misdiagnosis? When it comes to medical misdiagnosis cases, medical malpractice misdiagnosis and delayed diagnosis, you would think that a failure to diagnose and misdiagnosis of an illness or injury would be the basis of any medical malpractice lawsuit. Truth be known, however, physician misdiagnosis on its own is not necessarily medical malpractice. Furthermore, not all diagnostic errors necessarily mean that you will have a valid medical malpractice claim. Even highly experienced and competent doctors make diagnostic errors. Instead, the doctor misdiagnosis or failure to diagnose must result in improper medical care, delayed treatment, or no treatment, which in turn results in either causing or permanently aggravating the patient’s medical condition in order for the malpractice to be even actionable.

Since determining a valid medical malpractice misdiagnosis claim can be difficult, it is best to carefully explore the topic and issues. Can you sue a doctor for misdiagnosis? Can you sue a doctor for wrong diagnosis? Can you sue a hospital for false diagnosis? Can you sue a hospital for giving wrong diagnosis? How to sue a doctor for misdiagnosis? To answer such questions, we shall be addressing the following when it comes to medical misdiagnosis or doctor misdiagnosis cases:

•  3 Basic Elements To Bring A Viable Claim For Misdiagnosis Or Failure To Diagnose
  • 1A. Doctor-Patient Relationship and Duty of Care
  • 1B. What Constitutes Negligent Diagnosis?
  • 1C. Did the Diagnostic Error Cause Harm?
• Types of Medical Diagnostic Errors
• What Are Some of the Difficulties with Failure to Diagnose Cases?
• FAQ
• What a Medical Misdiagnosis Lawyer Can Do For You?

3 Basic Elements To Bring A Viable Claim For Misdiagnosis Or Failure To Diagnose

Can I sue my doctor for misdiagnosis? Can I sue my doctor for wrong diagnosis? A misdiagnosis case may involve a wrong diagnosis, a missed diagnosis, a delayed diagnosis, or a failure to recognize complications that change or aggravate an existing condition. Sometimes a doctor misdiagnosis may involve a doctor diagnosing one condition correctly but misdiagnosing another condition or failing to realize that there is a second diagnosis that needs to be made.

Regardless, in order to have a proper medical malpractice claim for misdiagnosis or failure to diagnose, the following three elements must be present.

• A Doctor-Patient Relationship Existed At The Time Of The Alleged Error In Diagnosis
• The Doctor’s Error Rose To The Level Of Negligence, And
• The Patient Suffered Harm Due To That Negligence.

1A. Doctor-Patient Relationship and Duty of Care

Can you sue for misdiagnosis? When it comes to medical misdiagnosis cases and delayed diagnosis medical malpractice, the first element that must be shown in a medical malpractice claim is that the patient must show that the doctor owed a legal duty of care to a patient, which means that the patient must first be able to demonstrate that a doctor-patient relationship existed at the time the alleged medical malpractice occurred.

To do so, one way to prove this is to show that you hired the doctor and the doctor agreed to be hired. For example, you can’t just sue a doctor you overheard giving advice at a party. This clearly isn’t a doctor-patient relationship. If a doctor began seeing you and treating you, however, then it would be easy to prove a physician-patient relationship existed. The issue of whether or not the relationship actually existed arises where a consulting physician did not treat you directly.

Another way to show the relationship between a doctor and a patient is one that is voluntary and usually entered into by agreement. Some things that can be used to support a finding that a doctor-patient relationship existed at the time of the alleged malpractice are evidence, such as documents and testimony, showing that:

• the patient voluntarily chose to be treated by this particular doctor
• the patient submitted to examinations for the purpose of treatment of a certain health problem or condition, and
• treatment by the doctor was ongoing.

On that note, it is a good idea for a patient to obtain a copy of medical records showing the course of treatment, from beginning to end. Doing this will go toward proving the existence of the doctor-patient relationship.

The second element in a medical malpractice claim is that the doctor violates their standard of care. In treating a patient, a doctor must use the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge that is available to the physician. Another way to describe the standard of care is to say that it is based on the customary practices of the average physician, i.e., what the average physician would customarily or typically do in similar circumstances. Accordingly, a doctor whose conduct falls below this standard of care can be said to have committed medical negligence.

1B. What Constitutes Negligent Diagnosis?

As stated earlier, a doctor misdiagnosis, delayed diagnosis, or doctors giving wrong diagnosis is not itself evidence of negligence. Oftentimes, skillful doctors can and sometimes do make diagnostic errors even when using reasonable care. The key is determining whether the doctor acted competently, which involves an evaluation of what the doctor did and did not do in arriving at their diagnosis. This means looking at the “differential diagnosis” method the doctor used in making treatment determinations.

Differential diagnosis is a systematic method used by doctors to identify a disease or condition in a patient. Based upon a preliminary evaluation of the patient, the doctor makes a list of diagnoses in order of probability. The physician then tests the strength of each diagnosis by making further medical observations of the patient, asking detailed questions about symptoms and medical history, ordering tests, or referring the patient to specialists. If everything is done right, theoretically, a number of potential diagnoses will be ruled out as the investigation progresses, and only one diagnosis will remain at the end. However, given the uncertain nature of medicine, this is not always true.

Sometimes, after further investigation, the doctor will discover other information that will cause them to add to the differential diagnostic list.

In a doctor’s misdiagnosis or medical malpractice case based on diagnostic error, the patient must prove that a doctor in a similar specialty, under similar circumstances, would not have misdiagnosed the patient’s illness or condition. In a practical sense, this means proving one of two things when it comes to medical misdiagnosis cases:

• The doctor did not include the correct diagnosis on the differential diagnosis list, whereas a reasonably skillful and competent doctor under similar circumstances would have.
• The doctor included the correct diagnosis on the differential diagnosis list, however, failed to perform appropriate tests or seek other opinions from specialists in order to investigate the likelihood and veracity of the diagnosis.

Errors in Diagnostic Tests

Sometimes a doctor fails to correctly diagnosis a condition because they relied on inaccurate results from laboratory tests, radiology films, or other types of tests. This can happen in one of two ways:

• The diagnostic equipment was faulty.
• Human error occurred — for example, the samples were contaminated or mixed up, the technician used an improper procedure, the test results were read incorrectly, or the technician or specialist missed something in an x-ray or pathology slide.

Although the doctor might not be liable for medical malpractice in this situation, another person may be, such as the nurse, assistant, or technician that may have misread the slide. Again, the patient must prove that the error was the result of negligence.

If you want to learn more about what is or what is not medical malpractice, please review

1C. Did the Diagnostic Error Cause Harm?

The third and final element in order to prove medical malpractice is showing that the diagnostic error caused harm. Specifically, the patient must also prove that the doctor’s negligent misdiagnosis or delayed diagnosis caused the patient’s injury or condition to progress beyond where it normally would have had the correct diagnosis been made in a timely manner, and that this progression had a negative impact upon treatment.

For example, because of a delayed cancer diagnosis, the patient had to undergo a more severe treatment (such as chemotherapy) or the patient died because the cancer had spread and no longer responded to treatment. Should a doctor diagnose a patient with a condition or illness that the patient does not have, the patient may also be able to prove harm in the form of anxiety, stress, medical problems, and expenses due to unnecessary treatment.

Types of Medical Diagnostic Errors

There are many ways that a physician can make a diagnostic error. This includes:

• Wrong diagnosis. Commonly referred to as misdiagnosis, this is when the doctor chooses the wrong illness. An example of this would be if a doctor diagnoses a patient with a gastric problem when in fact the patient was having a heart attack. In that type of case, you’ll want to consult with a heart attack misdiagnosis lawyer. Or, if the doctor diagnoses the patient with cancer when in fact the patient is cancer-free. In that type of case, you’ll want to consult with a New York cancer misdiagnosis lawyer.
• Missed diagnosis. This is when the doctor gives the patient a clean bill of health, when in fact the patient has an illness or disease.
• Delayed diagnosis. This is when the doctor eventually makes the correct diagnosis, but after significant delay. Late diagnosis is one of the more common types of diagnosis error.
• Failure to recognize complications. This is when the doctor makes the right diagnosis, however, fails to identify complications or factors which change or aggravate the illness or condition.
• Failure to diagnose a related disease. This is when the doctor correctly diagnoses one disease, however, fails to diagnose a related disease. A related disease is one that often goes hand-in-hand with the primary condition or that has a higher risk of incidence in patients with the primary disease.
• Failure to diagnose an unrelated disease. This is when the doctor correctly diagnoses one disease, however, fails to diagnose a completely unrelated second disease.
• Misdiagnosis in the Emergency Room. In an emergency room, less common illnesses and conditions are more likely to escape correct diagnosis. Conditions that are uncommon in certain patient populations are also less likely to be correctly diagnosed. For example, a young woman experiencing gastric distress (one symptom of a heart attack) is less likely to be diagnosed with a heart attack than an overweight, middle-aged man with the same symptoms. Some examples of conditions that are commonly misdiagnosed in an emergency room include heart attack, stroke, pulmonary embolism, and meningitis. Appendicitis is misdiagnosed in 28% to 57% of children under the age of 12 and in close to 100% of infants.

In any of the above types of diagnosis errors, you’ll definitely want to consult with a misdiagnosis attorney.

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

Proving failure to diagnose can be very difficult for many reasons.

One reason is that any medical problem you had when you first went to the doctor was likely to cause you some harm even if promptly diagnosed and treated. If the harm you suffered would have occurred even if the doctor had not failed to diagnose your medical problems, you cannot claim that his negligence caused your harm.

Two, you may not have seen the right specialist. More than one body system can give the same symptoms, making it difficult to correctly diagnose a condition. For example, a dermatologist cannot be expected to identify and treat an illness originating from the digestive system.

Three, you withheld information from the doctor or gave them misleading information to which might have aided or hindered the doctor’s ability to diagnose the problem. For example, if you tell the doctor that you don’t smoke even though you actually did, than the doctor may not be able to properly diagnose that you have developed lung cancer or other respiratory illnesses.

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

Five, you need to watch the statute of limitations in a misdiagnosis case. In any medical malpractice case, plaintiffs need to be mindful of time limits and getting the misdiagnosis lawsuit filed. In New York, the medical malpractice statute of limitations typically allows victims 2.5 years, or 30 months, from the time of the injury to file a medical malpractice claim, however, there are a number of exceptions to this timeframe.

When it comes to medical misdiagnosis lawyers, you’ll need an effective and capable delayed diagnosis lawyer. At the Law Office of Yuriy Moshes, we are experienced and knowledgeable when it comes to medical misdiagnosis cases and filing a misdiagnosis lawsuit. We represent patients in the greater New York City area including all its boroughs, including Manhattan, Brooklyn, Queens, the Bronx, and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.