(Last Updated On: March 10, 2020)

Injuries due to medical negligence are always tragic. Medical negligence claims based on a healthcare provider’s misdiagnosis or failure to diagnose a serious medical condition or disease are particularly tragic. The natural result of a misdiagnosis or failure to diagnose is that proper care and treatment may not be rendered until much later. In many cases, this can mean the difference between life and death — between curing the disease and the person expiring from the disease. And sometimes, these injuries were entirely preventable had the right diagnosis been made earlier. 

Many diseases are more responsive to treatment if they are caught early. Several conditions also require less invasive or systemic treatments if they are caught early. Cancers, for instance, are one of the major diseases where this is readily apparent. Cancers grow over time, but if they are diagnosed early, before there is significant spread, then it may be possible to treat the disease with a single surgery and without chemotherapy or radiation therapy.  

But if diagnosis is delayed, or if there is a misdiagnosis, the cancer may grow too large to remove with a single surgery and may spread to other organ systems. This in turn means that any treatment provided, once it is actually caught, will be far more difficult, invasive, and risky. Further, the patient’s prognosis may also be considerably worse. Advanced diseases are almost always more life-threatening and life-limiting.

When a healthcare provider’s failure to diagnose is the result of neglect (meaning that the provider failed to exercise the level of skill, care, and knowledge that a reasonably careful healthcare provider would have exercised under the same or similar circumstance), then that is malpractice. Severe injuries may result and legal action may be justified. 

How Does a Failure to Diagnose Happen?

Misdiagnoses and failures to diagnose are the product of a healthcare provider not recognizing the signs, symptoms, or findings of a disease properly. These diagnostic errors take many forms and can manifest in many ways, including:

Radiology Misreads

CT scans, X-rays, MRIs, and other studies are used to look inside the human body and detect disease, trauma, or other problems in a minimally-invasive fashion. But the interpreting physician, often a radiologist, must use reasonable care when looking at the study. They must report all findings that suggest disease, including incidental findings — meaning, findings that are seen, but were not specifically looked for on the study.  

If the physician does not use reasonable care and thus, does not recognize findings of a disease on the imaging study, or does not describe the findings on the radiology reports sent to the ordering provider, the result may be that the disease is missed, and a diagnosis may not be made until far later.

Pathology Misreads 

Biopsies are often taken to confirm whether or not certain tissue is really diseased, most commonly when there’s a question of whether something is cancerous. The pathologist must correctly interpret the tissue sample taken during the biopsy under the microscope. For example, if a pathologist interprets something to be benign, meaning not cancerous, when it is really cancer, then this misdiagnosis might lead to a prolonged delay in recognizing, and therefore treating, the cancer.

Clinical Diagnostic Errors 

When trying to render care and treatment, the provider needs to obtain all of the relevant history, symptoms, complaints, physical findings, and other information in order to properly develop an idea of what might be wrong and what should be done to treat the patient. Overlooking patient complaints, not ordering certain laboratory tests, overlooking certain laboratory tests, not taking into consideration all relevant medical history, and not ordering sufficient imaging studies, are all situations where the provider may fail to obtain all necessary information for proper medical decision making, and thus, may not make the correct diagnosis.

There are a myriad of situations where diagnostic errors can occur and the above are only a few examples.

Making the correct diagnosis can be challenging and not all diagnostic errors are medical malpractice. Even experienced, highly trained, and extremely capable doctors make diagnostic errors.

But healthcare providers are always obligated to use reasonable care when trying to render care and treatment. Failure to do so places the patient at risk and may result in major morbidity and mortality. When the misdiagnosis or failure to diagnose results in improper care, delayed care, or no care, and as a result, the patient suffers injuries, then there might be actionable malpractice.

Nurse in green scrubs holding a medical form with blurred patient in background

What Factors Cause a Failure to Diagnose?

Human error tends to be one of the major causes of diagnostic failures. Misperceptions, misunderstandings, and misinterpretations can all contribute to failure to timely diagnose or a misdiagnosis.

Confirmation bias, where the provider looks for evidence to confirm what they think is the diagnosis while excluding evidence that says otherwise, is a massive contributor. Anchoring bias is another cause of diagnostic errors. This is when an initial piece of information is given too much weight and thus, the provider excludes or does not rely on other potentially critical pieces of information.  

Preconceived notions can be the enemy of good medical practice, as they can cause the provider to overlook important parts of the overall presentation of the patient.

What to Do If You’ve Been Affected by a Diagnosis Error

As mentioned, misdiagnoses or failures to diagnose can cause permanent injuries, continuing disability, or even death. If you or a loved one have been injured or affected by a doctor’s negligence in failing to diagnose a medical condition, you may have legal recourse. Thus, you may want to consider taking the following steps:

  • Gathering medical records from the providers who rendered care and treatment, including the providers who failed to make the correct diagnosis, as well as subsequent treaters. These may include records from doctor’s offices, hospitals, physical therapists, home nursing services, and skilled nursing facilities. Under the Health Insurance Portability and Accountability Act (HIPAA), patients have a right to request and receive their medical records.
  • Gathering any radiology studies that may be relevant to the misdiagnosis, the eventual correct diagnosis, and any care and treatment rendered. Most facilities in this day and age are capable of providing X-rays, CT scans, MRIs, angiograms, and even studies done during surgeries on CDs or DVDs. Particularly if the case involves a misread of a study or failure to diagnose a disease on an earlier study, you are encouraged to gather radiology studies from hospitals, offices, or other facilities.
  • Contacting a medical malpractice attorney. Medical malpractice cases, including misdiagnosis and failure to diagnose cases, can be very complex and challenging to pursue.

Filing deadlines may apply, so you will want to act promptly so you don’t lose your ability to recover damages. The filing window might depend on the exact details involved in your case, so again, it’s important to contact a legal professional for guidance. 

You also may want to gather:

  • Any bills, invoices, or other documents and things demonstrating out-of-pocket medical expenses incurred.
  • Any documents demonstrating income that was lost due to inability to work caused by the misdiagnosis or the treatment now required because of the delay in diagnosis. These may include W-2s, 1099s, and pay stubs.
  • If the case involves the death of a loved one, documentation of the funeral, burial, cremation, memorial, or other expenses incurred in handling the remains of the deceased.

Damages sustained for loss of past and future income, past and future out-of-pocket medical expenses, and, in cases involving death, expenses for handling the remains of the deceased are generally compensable in medical malpractice suits.  If you are struggling with expenses or loss of livelihood because of medical negligence, you are strongly encouraged to gather the above listed documents, as they may be valuable evidence.

Speak With an Experienced Lawyer About Your Case

No one should have to suffer through long-term injuries and losses, especially if they could have been prevented through a proper diagnosis. If you or a loved one have suffered injuries due to a missed or failed diagnosis, understand that you may be entitled to legal recourse. 

The attorneys at Hodes Milman, LLP have extensive experience dealing with medical malpractice and diagnosis errors. For more than 30 years, we have helped victims of negligence receive the healing and attention they deserve. Our goal is to ensure each of our clients gets the justice they deserve.  

Serious injury cases often have a deeper cause. Pursuing legal action can help uncover unsound medical policies and practices, thus helping protect others from injury as well. Get in touch with us at (949) 640-8222 if you have questions about a malpractice incident. You can reach us seven days a week, and all consultations are obligation-free and confidential. 




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When you work with us, you’ll see the difference. A lot of firms are quick to show you numbers, and it is absolutely true that your lawyer should have experience and a strong track record in the area that you require. However, we’ll take it one step further. We also believe that your attorney should put your needs, cares and desires first. Because you deserve more than just compensation for your losses - you deserve a true advocate.

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