Medical Malpractice

Failure to Diagnose May Be Medical Malpractice

Many medical malpractice lawsuits are over a doctor's failure to diagnose a patient's medical condition. Closely related is when there's a misdiagnosis or delayed diagnosis. But not every mistake in diagnosis is medical malpractice.

Diagnosis Errors

Your doctor has a big job. For example, she's responsible for recognizing if you're showing signs or symptoms of various diseases or medical conditions. She's also responsible for knowing the risk factors making it more likely for you to develop a serious medical condition in the future and finding out if you have those risk factors. And if you have symptoms she doesn't quite understand, she has the responsibility of doing what she can to find an answer.

Sometimes mistakes are made:

  • Failure to diagnose is when your doctor completely misses the connection between your symptoms and a medical condition and no course of treatment is taken
  • Misdiagnosis may also be a failure to diagnose, but it more commonly refers to when your doctor believes you have one condition when you actually have something different
  • Delayed diagnosis is when your doctor isn't fast enough in making the connection between your symptoms and a medical condition

The end result in any of these cases may be that a patient doesn't get the proper medical care or treatment and he suffers a more serious illness or injury, or even death. For example, if a doctor doesn't diagnose some forms of cancer quickly enough, the cancer may develop into an untreatable and deadly condition.

Is It Malpractice?

In a medical malpractice case, you have to prove several things:

  • The doctor owed you a legal duty of care. In other words, there was a doctor-patient relationship. This duty requires him to have the medical knowledge and skills required of a reasonably competent physician who practices the same type of medicine
  • The doctor breached or broke that duty - he made a mistake in diagnosing your medical condition
  • You suffered some type of harm or injury, such as developing a more serious medical condition
  • The doctor's mistake caused your injury or harm. You developed a more serious medical condition because of the doctor's mistake

When it comes to errors in diagnoses, whether there's malpractice depends on the facts and circumstances of each case. Doctors are human and they make mistakes; no one expects them to be right every time with every patient. Also, there are times when doctors do everything they're supposed to do and a condition or disease still goes unnoticed.

And, even if a mistake was made, it's not malpractice if you're not injured by the mistake. For example, if a doctor prescribes the wrong medication or the wrong dosage, and after taking it you suffer no serious or lasting harm and the mistake is later corrected, you probably don't have a medical malpractice case.

You have some responsibilities, too. You need to be up-front with your doctor when it comes to your medical history and personal habits. You also need to explain as best you can what's troubling you - he can't read your mind. And you have to take charge of your treatment. If, for instance, at your annual physical check-up you don't tell your doctor about chest pains you had a few days earlier, it's probably not malpractice if the doctor doesn't diagnose a heart condition and you later develop heart disease.

However, it may be medical malpractice if your doctor:

  • Doesn't ask about your medical history and personal habits. This is important for many reasons, such as letting him know of any risk factors you may have that make it more likely for you to develop a medical condition in the future. For instance, do some forms of cancer run in your family? Do you smoke?
  • Fails to order the proper tests or screenings for your medical condition
  • Doesn't recognize your symptoms
  • Misinterprets test results

Usually, it comes down to the question of what another reasonably competent doctor would have done differently in your case. If another qualified doctor would have noticed something in your medical history making a particular test necessary, or would have recognized symptoms of a medical condition and started a course of treatment, you may have a good medical malpractice claim.

Questions for Your Attorney

  • How long does a medical malpractice take? How much will it cost me?
  • Is there anything a patient can do if her insurance company refuses to pay for medical tests requested by her doctor and she suffers a more serious medical problem? 
  • If get medical treatment in another state and the doctor is negligent, does my malpractice case have to be filed in that state or can I file it here?
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This article was verified by:
Jeffrey M. Rich | May 11, 2015
30 Vesey Street
New York,NY

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