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How Do I Prove Misdiagnosis and Delayed Diagnosis?


Published in medical malpractice on April 11, 2017.

Medical malpractice leads to thousands of lawsuits each year in the United States. While some forms of malpractice, such as gross negligence or surgical errors, are easy to prove, it can be difficult to prove a delayed diagnosis or misdiagnosis as malpractice. To win a medical malpractice lawsuit for a misdiagnosis or delayed diagnosis, the plaintiff’s attorney must prove the defendant did not act reasonably or competently.

Establishing Malpractice

Medical malpractice lawsuits hinge on many of the same legal concepts as personal injury lawsuits with some extra considerations. Medicine is inherently uncertain in many cases, so a malpractice lawsuit will hinge on comparing the defending doctor’s actions to other, reasonably skillful and competent doctors. To win a medical malpractice lawsuit for a diagnostic error, the plaintiff must prove:

  • There was an official doctor-patient relationship between the plaintiff and the defendant.
  • The doctor was careless or negligent in his or her treatment. This usually depends on the plaintiff’s ability to prove another reasonable and similarly skilled doctor in the same situation would have acted differently.
  • The doctor’s negligence caused actual injury to the plaintiff. If the doctor’s negligence did not result in any injury or distress to the patient, there are no grounds for a lawsuit.

A doctor making an error does not automatically constitute negligence. If the doctor acts in good faith, diagnostic errors are still possible. Doctors must work diligently to accurately assess a patient’s condition in a timely manner. Failing this, the law may hold them liable for injuries resulting from misdiagnoses or delayed diagnoses.

Differential Diagnosis

There are countless infirmities and medical conditions, and many share similar signs and symptoms. Doctors use a process known as differential diagnosis to determine a patient’s condition. This is essentially a process of elimination: the doctor will evaluate the patient and make a list of probable diagnoses based on their likelihood.

Once the doctor has established a few possibilities, he or she will proceed to test each possible diagnosis through various investigations. This could include intervention from specialists, investigating the patient’s medical history, or running additional tests for specific conditions.

Once the doctor has narrowed down the possibilities to a few, he or she should be able to accurately determine the patient’s condition. In a medical malpractice case for a diagnostic error, the plaintiff must be able to prove the doctor either did not include the correct diagnosis in the differential diagnoses list or included the correct diagnosis but did not perform the appropriate tests to fully investigate it as a possibility.

Other Potential Defendants

In some situations, doctors may deliver an incorrect diagnosis through no fault of their own. During the testing phase, faulty lab equipment or human error can cause a misdiagnosis. For example, if a lab technician switched test samples or contaminated a sample, he or she may be liable for the resulting injuries and damages. If a faulty piece of equipment failed to correctly assess a patient’s status, the manufacturer may be liable under product liability laws.

Collecting Compensation for Damages

A misdiagnosis or delayed diagnosis can prevent a patient from receiving appropriate treatment. In some situations, this can lead to permanent damage or disability, painful and unnecessary medical procedures, extensive hospital bills, and even death. A plaintiff’s attorney in a medical malpractice case will typically call on expert witnesses to testify to the defending doctor’s medical acumen and the appropriateness of his or her actions.

Injured patients may be eligible for compensation including medical expenses, the costs of any restorative or rehabilitative treatments or procedures, pain and suffering, and lost income from time spent out of work due to the incident. Medical malpractice lawsuits can be extremely time-consuming and complicated, so reliable personal injury representation will be essential for a positive result.