Misdiagnosis and Failure to Diagnose: Medical Malpractice Basics

A look at key medical and legal issues in misdiagnosis cases.


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Medical malpractice law seeks to ensure that patients always receive competent care, which includes an accurate assessment of any health problems, and a plan for the right course of treatment based on the patient's condition. When doctors fail to provide a proper or accurate diagnosis, medical malpractice law allows patients to receive compensation for any resulting harm.

Patients must prove three basic elements to bring a viable medical malpractice claim for misdiagnosis or failure to diagnose:

  • 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.

This article discusses these three elements in the context of a doctor's improper or incorrect diagnosis.

What Constitutes a Doctor-Patient Relationship?

This requirement is relatively simple. When a doctor examines a patient or provides treatment, a doctor-patient relationship is generally established. No written contract is necessary. No payment or promise of payment is necessary. Doctors are required to provide reasonably competent care any time they act in their capacity as doctors, including recognizing and properly assessing potential health problems.

What Constitutes Negligence?

Doctors act negligently when they fail to provide the quality of care that other reasonably competent doctors would have provided under similar circumstances. In medical malpractice lawsuits, patients have the burden of proving what quality of care other reasonably competent doctors would have provided in similar circumstances.

This usually requires expert testimony. The patient (usually through a medical malpractice attorney) hires a doctor that has experience with the type of medical problem at issue in the case. The doctor provides an opinion regarding what a reasonably competent doctor would have done under the circumstances. Generally, when an improper diagnosis is involved, the expert will opine about the "differential diagnosis" that a reasonably competent doctor would have conducted. To do this, a doctor makes a list of all of the possible medical problems that could be causing the patient’s symptoms. The doctor then conducts tests on the patient, ruling out various possibilities until a definitive diagnosis can be determined.

Once a patient proves the medical standard of care that a reasonably competent doctor would have achieved, the patient must prove that their doctor failed to achieve that standard. Doctors might fail to achieve the standard of care in any of the following ways when it comes to a diagnosis:

  • A doctor might fail to include an important potential medical problem on the initial differential diagnosis list.
  • A doctor might improperly conduct or interpret a test that could cause a mistake in narrowing down the possibilities.
  • A doctor might fail to recognize the urgency of one of the possible medical problems, delaying the diagnosis.
  • A nurse might fail to properly provide diagnostic medication, altering the patient’s response to the medication and leading the doctor to the wrong conclusion. (Note that in this case, the nurse or the hospital would likely be liable for medical malpractice.

Whether doctors made one of these mistakes or some other error, in order to prove negligence, patients must first prove the standard of care that reasonably competent doctors would have provided under similar circumstances. Second, patients must prove that the conduct of their doctors failed to meet that standard of care.

What Harm Entitles Patients to Compensation?

In order to win damages in a medical malpractice case based on misdiagnosis or failure to diagnose, patients must prove that their doctors’ negligence caused foreseeable harm. This harm can take many forms, including:

  • pain and suffering
  • cost of medical bills
  • loss of earning capacity, and
  • loss of the ability to enjoy life’s pleasures in the same way as prior to the harm.

The critical issue is whether harm was caused by a doctor’s negligence. It is insufficient to merely show that harm occurred after a doctor was negligent.

For example, assume that a patient visits a doctor complaining of headaches. The doctor diagnoses the patient with a minor problem when, in reality, brain cancer was causing the headaches. After two months, the patient dies from the cancer. Assume further that even if the doctor had immediately found the cancer, the patient would have died at approximately the same time because no effective treatment has been found for that type of cancer under current accepted medical practices. In this scenario, the doctor would not be liable for malpractice. Although the doctor might have acted negligently, the negligence did not cause the patient's death. The death would have occurred even if the doctor had found the cancer immediately.

On the other hand, assume that in the above example, the patient’s death could have been delayed by six months with proper treatment. In that case, the doctor could be liable for malpractice because the patient was harmed by the doctor’s negligence when the patient’s life was cut short by six months.

Learn more about What You Need to Prove in a Medical Malpractice Case.

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