When a Wrong Diagnosis Counts as Medical Malpractice

According to the American Journal of Medicine, each year up to 15 percent of patients suffer needlessly as a result of wrong diagnoses, which include misdiagnoses and delayed diagnoses. A wrong diagnosis is considered medical malpractice if the doctor’s actions “deviated from the medical standard of care” of similarly trained doctors.

Each allegation of medical malpractice is decided in court, based on its own merits. The majority of wrongful diagnoses occur because doctors:

  • Fail to order appropriate screening for illnesses and diseases
  • Misinterpret lab and test results
  • Fail to refer patients to specialists
  • Fail to spend adequate time with patients to address symptoms
  • Fail to follow up with patients, their test results, and with the referred specialists

A wrong diagnosis won’t always place a patient’s health in jeopardy. People often ask if they can sue a doctor who made a harmless mistake. The answer is, no. Unless a doctor’s mistake results in serious injury, the chances of winning a medical malpractice case are small.

Some illnesses, whose symptoms can be caused by a number of factors, are very difficult to diagnose. Even the best doctors can review a patient’s symptoms and come up with completely different diagnoses.

To minimize wrong diagnoses, most doctors adhere to the “Differential Method.” Using this technique, a doctor will create a list of possible diagnoses which could be attributed to the patient’s symptoms. From there, the doctor will begin ordering tests. As each test comes back negative, the doctor will cross out the associated illness and move on to the next one. This process of elimination continues until the illness is identified.

While the differential method has historically been the most effective way to diagnose an illness or injury, there are occasions when a doctor hesitates to use it. This could be due to the doctor’s arrogance or laziness, or because the patient’s insurance company won’t pay for all the tests.

Access to sophisticated diagnostic tools, such as MRIs, CT scans, and PET scans, must be factored in when discussing wrong diagnosis and medical malpractice. Also, unlike larger metropolitan areas where doctors can specialize in specific areas of medicine, doctors in rural areas have to be generalists. These doctors can’t be held to the same medical standard of care as doctors with specialized practices.

Overlooked Diagnosis

An overlooked or missed diagnosis can mean the patient isn’t prescribed the medication or treatment needed to successfully address the illness. As a result, the patient can needlessly suffer while her condition worsens, sometimes to a point where medical treatment no longer matters.

Example: Parkinson’s Disease

Tom is a fifty-five year old man. For the last few months he’d been experiencing hand tremors, fatigue, difficulty swallowing, and was having balance coordination problems (medically referred to as “postural instability”).

Concerned, Tom’s family doctor referred him to a neurologist, who was arrogant and dismissive. After spending only a few minutes talking with Tom, he said there was nothing wrong with him but stress, overwork, and obesity. He wrote a prescription for muscle relaxants and sent Tom on his way.

A month later, Tom’s symptoms persisted, so he got a second opinion from another neurologist. After thirty minutes reviewing Tom’s symptoms, speaking with and examining him, the doctor ordered a PET scan, MRI, and CT scan. A week later, the doctor called Tom in to her office and informed him all the tests pointed to Parkinson’s disease.

In the above example, technically, the first neurologist committed medical malpractice. He completely failed to diagnose a disease whose symptoms he should be familiar with. Does Tom have the basis of a malpractice case based on failure to diagnose?

The answer is, probably not. To have the basis of a valid malpractice case based on a missed diagnosis requires two major elements:

  1. The act itself. In the above case, the act would be the neurologist’s complete failure to recognize the symptoms of Parkinson’s disease.
  2. Damages. To have a legitimate malpractice case, Tom must be able to show the failure to diagnose resulted in damages.

In the above case, Tom’s damages might include: the anxiety the missed diagnosis caused him over the past month, the deductible he had to pay to see the first neurologist, medical building parking fees, wages from the day he missed work for the appointment, and possibly, the amount of gasoline he used traveling to and from the doctor’s office.

The neurologist’s failure to diagnose Tom’s Parkinson’s disease did not cause the disease. The illness existed before and after Tom consulted with the neurologist.

Let’s change the facts a bit. Let’s say Tom relied on the first neurologist’s diagnosis. He took the muscle relaxants and lost some weight, and a year went by during which his symptoms worsened. For a year he suffered pain and discomfort associated with the symptoms of Parkinson’s disease.

Tom’s symptoms worsened, so he found another family doctor. Concerned with his symptoms, this doctor referred Tom to another neurologist, who very quickly ordered an MRI, CT scan, and PET scan. Within a week this neurologist diagnosed Tom with Parkinson’s disease.

While it’s true the original neurologist didn’t cause Tom’s Parkinson’s disease, if he had properly diagnosed it, he could have prescribed medications to relieve Tom’s pain and discomfort. In this scenario, Tom’s damages would be substantial. What is a year of unnecessary pain and discomfort worth? A jury might think it’s worth a lot.


A misdiagnosis occurs when a doctor fails to recognize symptoms which are clearly attributable to one illness, and instead attributes them to another illness. When this occurs, the actual illness may go untreated, resulting in worsening symptoms, and a faster onset of the illness.

A doctor who misdiagnoses the actual illness may prescribe unnecessary medications and treatments, which may have serious side effects, or result in totally unrelated medical conditions. While the doctor is treating the wrong illness, the real one can worsen to the point where it may be too late to treat, even when properly diagnosed.

Example: Ciliac Disease

Jane is a twenty-five-year old woman who, for the last couple of months, has been suffering from stomach pain, cramping, nausea and weight loss. She went to see a local doctor, and completed a questionnaire regarding any diseases which run in her family. She clearly wrote “celiac disease.” The doctor listened to Jane’s description of her symptoms, examined her, and diagnosed her with a peptic ulcer.

If the doctor had looked at Jane’s chart, he would have seen there was a history of celiac disease in her family. Instead, he prescribed clarithromycin and metronidazole; two very potent antibiotics.

Six months later, after taking antibiotics twice a day, Jane began to display jaundice, bloating, and back pain, along with the same symptoms she had when she saw the original doctor. After seeing an internist and having tests performed, Jane was diagnosed with hepatic liver failure. The internist cited the use of antibiotics as the direct cause.

X-rays and a CT scan revealed Jane did not have an ulcer, nor was it likely she had one six months ago when the first doctor diagnosed her with a peptic ulcer.

Also, Jane’s original symptoms were still present, and had seemed to worsen. Her internist ordered a colonoscopy, which revealed all the villi lining her intestines were destroyed. The primary cause for this was the ingestion of wheat products. (Celiac disease can be controlled by avoiding wheat and other products containing gluten.)

This is a clear case of medical malpractice resulting from doctor misdiagnosis. The original doctor misdiagnosed Jane with one illness, when she actually had another. As a result, her celiac disease raged on, damaging her liver and causing unnecessary pain and suffering.

Delayed Diagnosis

A delayed diagnosis occurs when a doctor fails to recognize symptoms in time. As a result, the patient’s condition worsens. In some cases, a delayed diagnosis can result in an illness progressing to a “point of no return.” If the diagnosis hadn’t been delayed, appropriate treatment could have been provided and the patient may have survived, or at least not suffered needlessly.

Example: Prostate Cancer

Ben is a sixty-year-old man experiencing urinary tract pain, unusual fatigue, and persistent pain in his pelvic region. Instead of recognizing possible symptoms of prostate cancer, due to a history of prostate cancer in his family, Ben’s doctor prescribed pain medication for his back, and suggested he get more sleep.

Eight months later, with his condition worsening, Ben went back to see his doctor. This time, concerned about the possibility of prostate cancer, the doctor performed a digital rectal exam and ordered a PSA test, which looks for prostate-specific antigens. Tom’s PSA revealed his antigen levels at eight per milliliter of blood, indicating advanced prostate cancer.

As a direct result of the delayed diagnosis, Tom had to undergo radical chemotherapy, which would not have been the case if his diagnosis wasn’t delayed eight months. The pain and suffering from the chemotherapy, and the anxiety he now has to endure wondering if he’ll survive the cancer, are Tom’s damages. He likely has a strong medical malpractice case bsaed on the delayed diagnosis.

Get an Attorney

If you’ve been the victim of a wrong diagnosis, seek legal advice immediately. A medical malpractice case should never be handled alone. These cases are incredibly complex, and hard fought by attorneys representing the accused doctors.

Fortunately, most plaintiffs’ malpractice attorneys do not charge for initial office consultations. Gather copies of all your treatment records, medical bills, and receipts for prescriptions, medical aids, etc. You have a legal right to copies of these documents from your treating doctor, hospital, and any other medical providers. Bring all your documentation to your meeting with the attorney.

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