One of the most tragic situations is where a person is injured in a way that could have been prevented. This can happen in instances involving a doctor’s failure to diagnose a serious medical condition. The early diagnosis and proper treatment of serious conditions like cancer or heart disease can mean the difference between life and death. 

Such diseases are typically more receptive to treatment if they are caught early. As they progress, they can also become increasingly more challenging to manage or treat. While medical science is sound, doctors, medical staff, and other professionals can still make mistakes. They may neglect to make a diagnosis when one should have been made.  

When this happens, the resulting injuries can be highly severe and may require legal action in what is known as a “failure to diagnose” lawsuit. Failure to diagnose is one of the most prevalent causes in medical malpractice cases. It can lead to complications and permanent injury.  

What Does “Failure to Diagnose” Mean? 

“Failure to diagnose” is a legal term referring to incidents where a medical professional does not correctly diagnose a medical condition, disease, or illness. It can be considered negligence when a doctor with similar training, experience, or background would have discovered the illness and made a diagnosis, given a similar set of facts.  

Here, the main question is, “If the condition had been properly diagnosed at the time, what would the treatment have been?” For instance, a failure to diagnose cancer can place a patient in a position where they are not getting the full, proper medical treatment and attention that they needed. They could have received specific medications or surgical procedures that may have prevented further injury or even death.  

Failure to diagnose is most dangerous with serious medical conditions, such as:

  • Various forms of cancer
  • Heart disease
  • Sepsis (involving the body’s response to an infection)
  • Conditions involving a failing organ, such as the liver or kidneys
  • Certain types of degenerative diseases

Failing to diagnose any medical condition can place a patient at risk. However, the most damaging cases are those involving progressive diseases that can be treated if caught at an early stage.

Is a Failure to Diagnose the Same as a Misdiagnosis? 

Failure to diagnose is similar to a misdiagnosis. Both are included under the broad category of “diagnosis errors.” Diagnosis errors are among the most frequent, costly, and dangerous types of medical malpractice cases.  

A medical misdiagnosis usually occurs where the doctor does recognize that something is wrong, but they have identified the medical condition incorrectly. A common example of misdiagnosis is where a patient visits the emergency room complaining of chest pain. Instead of examining for a heart condition, the doctor may attribute it to simple heartburn or gas, when in fact there was an issue with the heart.

In contrast, a failure to diagnose may involve the doctor completely ignoring or missing the fact that the person is experiencing chest pain, and taking no further steps to investigate the patient’s condition.

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

Types of diagnosis errors include:

  • Delayed diagnosis: This is where the doctor eventually makes a diagnosis, but after an unnecessary and significant delay.
  • Wrong diagnosis: Also called misdiagnosis, this is where the doctor diagnoses the wrong condition in a patient, as mentioned above. These types of cases can lead to other major errors, such as operating on the wrong patient or performing the wrong kind of procedure. Cancer misdiagnosis is a main example of this error.
  • Failure to diagnose a related condition: In some cases, one type of medical condition will go hand-in-hand with another. If a patient has one condition, it is expected that the doctor will check for a related condition. For example, many types of leukemia are related to one another, and doctors often check for other variations if one type is already present. Failure to do so can lead to a negligence claim.

There can be overlap in the definition of these terms, and cases can often involve more than one type of diagnosis error. However, the term “failure to diagnose” usually refers to cases where the doctor completely misses a diagnosis that they reasonably should have detected. 

What Factors Cause a Failure to Diagnose?

One of the main causes of a failure to diagnose a medical condition is human error. Often, these can actually be traced to various misperceptions or misunderstandings from the doctor, which can include:

  • The doctor being fixated or locked into one aspect of the case, causing them to ignore or overlook crucial symptoms or information.
  • Errors in the way the medical problem is posed.
  • Judgments based on personal experiences, especially recent ones.
  • Confirmation bias (the doctor looks for evidence to confirm their own diagnosis while ignoring evidence that says otherwise).

When these types of misjudgments reach a point where a doctor is disregarding common medical standards and procedures, it can amount to negligence and may result in a medical malpractice claim. 

Other factors can cause a failed diagnosis. For instance, the failure may be caused by a defective medical instrument. In this case, a legal claim will likely be based on a product liability theory of law. 

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

If you have been injured affected by a doctor’s negligence in failing to diagnose a medical condition, you may have legal recourse. As mentioned, these types of injuries can be permanent and in many cases, life-threatening. They can completely change the way a patient experiences life moving forward. 

You may find it in your best interests to take the following steps:

  • Write a log or journal about the entire process of the failed diagnosis. Include notes such as the original medical condition, when you saw the doctor, how long you have been suffering, and other important details. 
  • Try to gather any items that might support your claim. This can include medical transcripts, statements from a doctor or medical staff, and other materials.
  • Consider consulting a medical malpractice attorney. Failure to diagnose cases can be complex and often involve many different parties. 

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. 

Damages for a failure to diagnose case can cover a wide range of expenses that you may be struggling with, including:

  • Bills for additional medical treatment
  • Lost wages due to missing work
  • Loss of an ability to generate income
  • Costs associated with pain and suffering or a loss of the enjoyment of life
  • Other fees and expenses

In cases where a loved one passed away due to diagnosis error, wrongful death expenses may also be factored into the judgment.

Speak With an Experienced Injury 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 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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