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Failure to Diagnose

triage nurse with patient in ERFailure to diagnose, as it relates to medical malpractice law, is the failure of a physician to properly identify a medical condition. Under certain circumstances, “failure to diagnose” lawsuits can be filed and may compensate victims for their injuries.

Failure to diagnose is slightly different from a misdiagnosis in that the former may result in no diagnosis at all, leaving the patient in a position where he or she tends to do nothing to cure the symptoms that drove the patient to see the doctor in the first place. Whereas any diagnosis may prompt cautious patients to seek a second opinion, patients who get clean bill of health will tend to do nothing as per doctor’s orders. It may take considerable time for symptoms to get worse and for the patient to return for further testing.

There are many reasons why a physician might fail to diagnose a condition:

  • Failing to conduct a sufficient physical examination
  • Failing to perform regular screenings, especially for high-risk patients
  • Failing to recognize symptoms of a condition
  • Ignoring and/or failing to act upon a patient’s complaints
  • Failing to order appropriate tests when indicated
  • Misinterpreting test results
  • Failing to referral of a patient to a specialist, or delaying that referral

Conditions physicians commonly fail to diagnose

Doctors fail to diagnose some conditions more than others:

  • Cancers, particularly of the breast, colon, prostate, lung, ovaries, cervix, testicles, kidneys, esophagus or skin
  • Allergic reactions, including anaphylaxis
  • Diabetic reactions, including ketoacidosis and diabetic coma
  • Meningitis
  • Stroke
  • Heart failure
  • Lyme disease
  • Parasitic infections of the gastrointestinal tract
  • Periodontal disease 

Costs and consequences

Patients can suffer serious harm as a result of a physician’s failure to diagnose, including medical complications, the need for more expensive or aggressive treatments, permanent bodily injury, decreased survival rates, shortened lifespan, and, in the worst cases, death.

If a failure to diagnose a condition leads to more extensive treatment, that can result in additional:

  • Medical costs
  • Lost time at work for the patient
  • Pain and suffering

How to prevail in a failure to diagnose lawsuit

Laws vary from state to state; however, medical malpractice generally boils down to a deviation from the generally accepted standard of care and resulting injuries or damages. To show that deviation, two things must be proven:

  • “Standard of care” must be established, which is the customary and proper methods of diagnosis generally recognized and accepted by that particular branch of the profession, and
  • A departure from that standard, under circumstances which justify the conclusion that the required degree of care was not met.

It is not malpractice if the treating medical professional chooses from generally accepted courses of action to diagnose the patient and uses a reasonable exercise in judgment in doing so. The professional has a duty to exercise the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the professional in his field.

The plaintiff in a medical malpractice/failure to diagnose lawsuit also has the burden to show:

  • To a reasonable degree of medical probability, the treating professional’s negligence was the proximate cause of the injury, and
  • Damages were caused by the negligent failure to diagnose the condition: economic loss, medical bills, emotional distress, pain, suffering, loss of enjoyment of life, disability and impairment.

Expert testimony from a physician in the particular medical field at issue is key in medical malpractice cases.

Expert medical testimony would be needed to establish:

  • The applicable standard of care
  • The physician at issue departed from that standard
  • The required degree of care was not met
  • The generally accepted courses of action in the situation
  • The physician didn’t take one of those courses of action
  • The physician failed to use a reasonable exercise in judgment
  • The failure to diagnose was the proximate cause of the injury

It would be up to the plaintiff to establish the damages caused by the failure to diagnose, with the help of copies of bills from the treating hospital and records showing lost work and income.  If pain and suffering are also claimed, the plaintiff would testify, as might the medical expert and the treating physician.

Recent “failure to diagnose” cases

Failure to diagnose lawsuits encompass a wide variety of situations and conditions. Judgments vary depending on the circumstances, the applicable law and instructions juries receive.

Some recent “failure to diagnose” case outcomes:

  • A jury awarded $12 million in a case where physicians failed to detect internal bleeding, which caused the death of a 52 year old man.
  • Over a six year period of time the plaintiff complained to his physician about a number of progressive symptoms. The jury awarded him $4.75 million because the physician failed to conduct tests in a timely manner, or refer the plaintiff to a specialist, which resulted in a failure to diagnose a tumor in the plaintiff’s spine. That tumor caused the symptoms complained of and ultimately partially paralyzed the plaintiff.
  • A plaintiff complained to his physician of abdominal pain and diarrhea. The physician diagnosed him with gastritis. A jury found that if a proper exam had been performed, appendicitis would’ve been found. Because it wasn’t, the plaintiff’s appendix burst, which caused a subsequent infection and multiple surgeries. The plaintiff was awarded $1.25 million.
  • A 16-year-old plaintiff was awarded $400,000 after showing that her physician failed to diagnose an ovarian cyst. Instead of further treatment, she was given pain medication. The cyst later ruptured and her left fallopian tube and ovary were surgically removed. The plaintiff showed that if she’d been treated earlier, that surgery could’ve been avoided.

Victims of malpractice must take swift action

Medical malpractice cases are subject to a statute of limitations, which is a time limit on when a plaintiff can file a lawsuit.  No matter how compelling the facts of a situation may be, if a complaint isn’t filed in a timely manner, it will be dismissed.

The medical malpractice lawyers of Eisbrouch Marsh are dedicated to helping families win financial awards for injuries caused by medical negligence. If you believe you have suffered injuries because a medical professional failed to diagnose your condition, contact us for a free consultation.

  1. National Institutes of Health, An Introduction to Medical Malpractice in the United States,

  2. USA Today, Doctor to help woman disfigured by cancer misdiagnosis,

  3. JAMA, Overdiagnosis and Overtreatment in Cancer,

  4. ABC News, Misdiagnosis of Cancer,

  5. Forbes, 10 Things You Want To Know About Medical Malpractice,