Pursuing Litigation for Misdiagnosis

Imagine finding out that you’ve been living with untreated cancer, celiac disease, or Lyme disease for years, despite being told it was just irritable bowel syndrome or rheumatoid arthritis. This is an unfortunate occurrence for an estimated 12 million Americans a year who are misdiagnosed with a condition they don’t have.

Some of the most commonly misdiagnosed conditions include but are not limited to:

  • Cancer
  • Heart attack
  • Celiac disease
  • Thyroid conditions
  • Lyme disease
  • Endometriosis
  • Fibromyalgia

A misdiagnosis, delayed diagnosis, or missed diagnosis can have grave consequences for a person’s health, resulting in unnecessary treatments or worsening of conditions that could even be fatal. For this reason, many patients or family members may wonder if they can turn to litigation to compensate for the damages caused by misdiagnosis.

We’ll walk you through some commonly asked questions about misdiagnosis and the legal options to address it below.

Can you Sue for Misdiagnosis?

Yes – just like other forms of medical malpractice, a misdiagnosis gives you legal grounds to sue for damages.

However, it’s important to distinguish misdiagnosis in the legal sense from other errors in the diagnostic process. Though most doctors aren’t dealing with House-level medical mysteries all the time, some conditions can be more difficult to detect than others, and not all cases of diagnostic goose-chasing count as misdiagnosis.

To sue for misdiagnosis, you must prove the same elements required for any malpractice case:

  • That a doctor-patient relationship existed at the time of the alleged misdiagnosis.
  • That the doctor’s error rose to the level of negligence.
  • That the patient suffered harm as a result of the misdiagnosis.

We’ll explore each element in further detail a little later in this article.

Is Misdiagnosis Considered Malpractice?

Misdiagnosis is considered a form of medical malpractice. As noted above, the elements required to prove a misdiagnosis claim are the same as the elements required to prove any medical malpractice case. When it comes to misdiagnosis, you must prove that the doctor’s error had to do specifically with the diagnostic process, unlike other types of medical malpractice – such as making a medication error or improperly using surgical equipment.

How do I Prove Misdiagnosis?

As discussed above, the primary elements of proving misdiagnosis are the same as those of any malpractice case: that there existed a doctor-patient relationship, that the diagnostic error resulted from negligence, and that the misdiagnosis caused harm. We’ll fully define each of those elements below.

Proving the Doctor-Patient Relationship

Another way of thinking about this is that the doctor must have had a proven duty of care to the patient at the time of the misdiagnosis. The plaintiff must prove that the misdiagnosis breached that duty of care. No written contract, payment, or even promise of payment is necessary to prove a doctor-patient relationship. As such, this is usually the easiest element to prove, with most cases resting instead on the issue of whether negligence occurred and/or whether harm resulted from the negligence.

Proving Negligence and the Standard of Care

To count as misdiagnosis, the diagnostic error must rise to the level of negligence. In other words, the plaintiff must prove that the doctor did not act in a way that another, similarly trained physician would have reasonably acted under similar circumstances. But how is this “reasonable” level of action determined?

The plaintiff must in turn prove the standard of care expected of the doctor in question. This usually requires the testimony of expert witnesses (often other medical professionals), who will consider the differential diagnosis method used and try to determine whether or not the doctor acted competently.

Let’s say a patient comes to their physician complaining of aggressive flu symptoms, a mysterious rash, and a cough that won’t go away. The doctor fails to include staph infection in their differential diagnostic method, leading them to send the patient home with the recommendation to stay home from work and drink lots of fluids. Left with an untreated staph infection, the patient develops toxic shock syndrome, which leads to organ failure.

If the patient’s symptoms would have caused another similarly trained physician to include staph infection in their differential diagnosis process, the erring doctor’s actions may be considered negligent.

Because a simple difference in judgment is not enough to constitute negligence, the standard of care is often the most difficult element to prove in a misdiagnosis case.

Proving that the Misdiagnosis Caused Harm

Like proving negligence, proving whether the misdiagnosis resulted in harm to the patient can be very tricky, requiring the analysis of complex medical evidence that can be difficult to parse, especially the more time that passes between the initial misdiagnosis and the lawsuit.

For example, if you suffered a car accident sometime after a doctor failed to detect a Lyme infection that went on to cause chronic joint pain, you will need to prove that your pain resulted from the Lyme disease and not the car accident. This requires extremely careful documentation of your medical history, including symptoms, tests, and appointments. What’s more, let’s say a patient whose doctor missed their cancer diagnosis dies because of the disease. If an expert witness determines that the death would have occurred anyway, regardless of the accuracy or timing of the diagnosis, then harm resulting from the misdiagnosis cannot be proven.

That said, it is well known that misdiagnosis can cause harm and even wrongful death. Some of the specific ways misdiagnosis leads to harm of the patient include but are not limited to:

  • A worsening of the condition that can lead to more acute or chronic health problems, expose the patient to more aggressive treatment than would have been necessary had the condition not been allowed to progress, or cause death.
  • Needlessly exposing the patient to harmful treatment or surgical procedures, such as chemotherapy for someone who does not actually have cancer.

When suing for misdiagnosis, it is the plaintiff who has the burden of proof. Because of the complexity of health and medical issues, it can be difficult to prove a misdiagnosis claim, especially without legal assistance.

Common Forms of Misdiagnosis

Misdiagnosis describes any negligent error in the diagnostic process that results in harm to the patient. This could include:

  • A delayed diagnosis, in which a medical professional fails to detect a condition as quickly as another similarly trained doctor would have in a similar situation.
  • A missed diagnosis, in which a medical professional fails to detect a condition due to negligent actions, but does not necessarily provide an alternative diagnosis.
  • An error in the diagnostic testing process, such as using the wrong test or misinterpreting lab results.
  • A failure to properly take account of, follow up on, or investigate a patient’s symptoms.
  • A failure to refer a patient to a proper specialist.

How to Get Compensated for Misdiagnosis

Misdiagnosis is a serious problem that is probably underreported in the U.S., for some of the same reasons that make it so difficult to prove a misdiagnosis case in court. An experienced medical malpractice lawyer can help you gather the resources you need to prove a misdiagnosis and get the compensation you deserve.

If you have questions about pursuing litigation for misdiagnosis, missed diagnosis, or delayed diagnosis, reach out to the attorneys at Nelson MacNeil Rayfield today.


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