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When Does Misdiagnosis Qualify as Medical Malpractice?

Legally Reviewed and Edited by: Terry Cochran

A misdiagnosis of a medical condition, and sometimes a delayed diagnosis, happens every day in the United States. In fact, the latest statistics point to the reality that over 40% of the time doctors diagnose incorrectly. When this happens a malpractice attorney at Cochran, Kroll & Associates, P.C. may get involved to begin a malpractice lawsuit. However, since proving a misdiagnosis is very difficult, the patient and attorney need to follow some strict guidelines that the misdiagnosis led to patient injury or death.

To qualify for a medical malpractice claim the patient has to prove that the doctor did not meet the acceptable standard of care that was expected by a professional in the reasonable performance of his duties. Even the most experienced and highly regarded physicians make diagnostic errors. When this diagnosis results in delayed treatment, improper treatment, or no treatment there can be grounds for a malpractice lawsuit if the doctor’s action led to a worsened medical condition.

What is a Differential Diagnosis?

When a doctor examines a patient who is complaining of a health problem, the first symptoms may be similar to an illness that is not life-threatening. At an early stage, a serious illness may not be identifiable or recognizable. For example, what may seem a simple case of indigestion with a female patient may turn out to be a case of ovarian cancer. Any two doctors can examine any given patient and come up with two very different opinions as to the type of illness and the best treatment.

To solve this diagnostic dilemma, doctors employ a “differential method” for arriving at a logical diagnosis of the problem. The doctor refers to his experience and knowledge to list all the possible illnesses and diseases that may be associated with the facts of the initial examination. He then orders the appropriate tests to evaluate each symptom, and as each test returns a negative result, he can cross off those illnesses on the list that do not apply. This is a very logical and scientific approach to discovering the exact illness the patient has.

Historically this approach has proven to be very effective. Unfortunately, tests like MRIs, Pet Scans, and CT Scans are not always available in every hospital and every community, and there are also circumstances where the patient’s insurance will not pay for the tests. If this is a concern, the doctor may not order a test that he thinks will reveal more of the underlying causes of the illness, and this may lead to a misdiagnosis, or not seeing the real causes of the symptoms. Every patient is different, and if a doctor misses something because of the lack of testing for legitimate reasons, they cannot always be held accountable. The circumstances for each patient and each treatment decision vary and cannot always be connected to negligence on the part of the physician.

Causes of a Misdiagnosis

Even when the doctor takes pains to order all the right tests and studies the results, the patient may still receive an incorrect diagnosis. The doctor may overlook a test or procedure that could have uncovered the illness, or even with the appropriate tests results on file, the doctor may misinterpret the information in the report and make the wrong decision. In some cases, the doctor may not spend enough time with the patient discussing the results and then miss some critical feedback from the patient in relation to the tests. It is also possible that mistakes were made at the lab, and without careful examination and follow-up the doctor could be looking for the wrong solution.

Types of Misdiagnosis

In order to more clearly present a clear understanding of a missed diagnosis it is necessary to break this action by a doctor or another medical professional into more explicit categories. A wrong diagnosis leading to the wrong treatment is an obvious first definition, but also a missed diagnosis can also lead to further medical problems for the patient that might have been avoided. A delayed diagnosis is a third type because the patient may have an initial sign of a condition and if the diagnosis is delayed the condition can develop causing unneeded injury. Lastly, failing to recognize possible complications to a present treatment or condition may aggravate and promote further injury to the patient. These categories need to be explored in depth.

A Misdiagnosis vs. a Missed Diagnosis

In a situation where there is a misdiagnosis, the doctor is actually wrong in interpreting the symptoms surrounding the patient’s complaints. For instance, it may seem like the patient has a case of the flu, but the patient really has the first stages of Lyme Disease. Another example might be that the patient exhibits symptoms of a severe case of the flu and they are really dealing with juvenile diabetes. If there is no patient history or experience that points to either of these cases, it is hard to see the entire scope of the illness without further testing and evaluation.

A missed diagnosis is a situation where the doctor or hospital physician misses the connection between the symptoms and the prescribed treatment. It is actually the lack of a diagnosis. In a case like this, a woman may have had a small lump on her breast, and she was told that it was benign to find out later that it was malignant. A widespread missed diagnosis is when a woman may be sent to a gastroenterologist for stomach cramps when she should have been sent to a gynecologist for the treatment of ovarian cancer.

In some cases of a missed diagnosis, the medical problem that was not seen can run its course, and the miracle of the healing powers of the body will make the symptoms disappear. In others, the unknown medical issue can lead to severe illness and even death. When there is a missed diagnosis it is usually best to seek the assistance of a qualified malpractice attorney. The law office of Cochran, Kroll & Associates, P.C. has extensive knowledge and experience with these types of cases, and they can professionally handle a malpractice suit for the injured patient or the patient’s family.

A Delayed Diagnosis and a Failure to Recognize Complications

The delay in making the correct diagnosis for the patient may lead to extensive and unnecessary injuries or even death. A delayed diagnosis indicates that the physician did not see the illness in time to treat it properly and this time lapse at the beginning of the medical issue and the lack of correct treatment can lead to a “point of no return” for the patient’s health. Should this point be reached there is the definite possibility of irreversible injury to the patient, and the chance of a prolonged illness leading to death.

Complications of such a delayed diagnosis can be devastating, especially if the patient is in a weak financial position and cannot afford extra treatments to counteract the advanced illness. In addition, loss of time from work, the possibility of never returning to work, and permanent disability are all consequences of this delay.

Related Areas of Misdiagnosis

A misdiagnosis or missed diagnosis may not be the fault of the attending physician. Errors in the prescribing and administration of medication can also be considered in a malpractice suit that initially began as a misdiagnosis claim. According to a study in 2006, medication errors harm over 1.5 million people in the United States each year. For instance, a patient may be wrongly diagnosed and given the wrong medication causing problems. The patient may also not receive the medication that will help them as a result of the misdiagnosis, and finally, in a hospital setting, a drug meant for one patient may be incorrectly given to the wrong patient. Any of these scenarios usually opens doors to litigation and the services of a malpractice attorney at our law firm.

Mistakes, unnecessary risks, and just plain incompetence in the surgical room can also be grounds for a lawsuit involving a base case of negligence due to misdiagnosis. A surgeon can be held accountable for such things as piercing an organ or other body part and even operating on the wrong part of the body. Surgeons have even been known to leave surgical instruments in the body once the wound has been closed. Nursing staff can be found negligent if they fail to provide the correct standard of post-surgical care or fail to clean and maintain support equipment during recovery.

The administration of Anesthesia is probably one of the most serious areas where patients can suffer the most due to mistakes in diagnosing correct doses and procedures. These consequences can begin even before the anesthesia is administered if the anesthesiologist failed to thoroughly investigate the patient’s medical history and possible complications as well as failing to inform the patient of the possible risks involved before and after surgery. Eating or not eating may have unwanted results.

Other errors with the administration of anesthesia can include giving too much anesthesia, inserting a tube in the trachea to assist with breathing, failing to accurately monitor the patient’s vital signs, or using defective equipment.

When to Contact an Attorney

A medical malpractice case is usually very complex and requires a great deal of the organization of notes and the investigation of hospital systems of treatment. In Michigan, the rules are very strict with many stages and legal hoops that demand a very professional approach to preparing the lawsuit.

If you have been in a hospital or you have seen a physician and your health concerns point to the possibility of misdiagnosis, then the first thing that you need to do is seek another opinion and make sure that you are on the road to recovery. Any medical malpractice lawsuit will involve the testimony of expert witnesses who are familiar with your illness, and it is always best to be on the road to getting well. The doctor who solves your problem will be an excellent resource.

In order to prove negligence on the part of a doctor or hospital, you need to be able to show that there was a doctor-patient relationship established with your doctor and that the doctor did not live up to the standard level of care expected by any other medical professional in diagnosing your illness. You also have to have proof that the misdiagnosis actually led to the injuries that you claim to have suffered.

The lawsuit will require the opinion of an expert witness and the courts will want to see the thinking behind the doctor’s differential diagnosis of the health problem. You have to be able to prove that any other doctor with the same information would not have arrived at the same diagnosis that has led to your injury. You have to very clearly show that the doctor did not include the correct diagnosis on his differential list and also, the expert witness must testify that he or she would have included your diagnosis with the same information available. If the correct diagnosis was recorded by the defendant, then alternatively, you have to establish through the same witnesses that you were prescribed the wrong treatment.

Final Note

Qualifying a medical misdiagnosis for a medical malpractice lawsuit is a complex undertaking even when it seems obvious to the patient. There are some instances where common human error intervenes to lead a physician down the wrong road, and there is no clear path to supporting a claim of negligence.

At the law firm of Cochran, Kroll & Associates P.C. have a great deal of knowledge and experience in navigating the intermingling systems of the healthcare industry, and we know what information to look for and where to look for it when handling your complaint. Contact us at or call us at 866-MICH-LAW for a free consultation concerning your claim of medical misdiagnosis. We never charge a fee unless we win your case.

Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.

Tristan is a professional writer and had careers as a teacher of English, school administrator, and as a broker in real estate sales. He has gained a great deal of legal experience through his service as the president of a teacher's union, a member of the board for a real estate association, and as the chairman of the Government Affairs Committee for the real estate board of directors. Before beginning a full-time job as a freelance writer, he was the Executive Director of the Global Business Alliance for a local Chamber of Commerce and sat on the Government Affairs Committee for the Chamber.



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