Delayed Diagnosis: When Is It Malpractice?

By Greg Kohn

There are many forms of malpractice, ranging from administering the wrong medication to leaving a surgical tool inside the patient during an operation. Not all forms are so blatant, however. Malpractice can also take the form of a delayed diagnosis. If you go to the doctor with a bad cough which is diagnosed as a cold, but hours later are rushed to the hospital with pneumonia, you may have a case of malpractice against the doctor who failed to detect the severity of your pulmonary problem.

Another example of a delayed diagnosis would be if you visit the doctor with a lump under your arm which the doctor tells you is a swollen gland and nothing to worry about, but you are later diagnosed with a metastasized breast cancer. If the cancer could have been treated with a mastectomy when you first visited the doctor, but by the time you are correctly diagnosed, there is no further treatment that will be helpful, the doctor is guilty of delayed diagnosis.

Three Elements to Prove Liability for Delayed Diagnosis

Delayed diagnosis is a kind of malpractice that may be difficult to prove. In order to proved malpractice in such cases, the patient must be able to prove that:

  • A doctor-patient relationship existed
  • The doctor was negligent
  • The patient was harmed by the doctor’s negligence

The first of these elements is simple enough to substantiate. As long as you have visited the doctor, been examined and provided with treatment, it is understood that a doctor-patient relationship existed. To prove delayed diagnosis, it is not necessary that the relationship was ongoing through the period of delay during which your health deteriorated.

Proving negligence — that the doctor failed to provide the care that other reasonably competent doctors would have provided under the circumstances — may be more difficult. The patient must demonstrate what the standard of care is for such symptoms or complaints and also that the doctor failed to meet (breached) that standard.

The Necessity of Expert Testimony

In almost all cases, expert testimony is required to prove delayed diagnosis. A qualified expert in the particular medical discipline must  give testimony as to how a reasonably competent doctor would have diagnosed the patient properly and without delay. If it can be established by the patient (and his or her legal team) that the original doctor breached the standard of care, then a case for malpractice can be established. If, for example, it can be stated unequivocally that a reasonable doctor would have diagnosed the problem within 48 hours, but the defendant doctor neglected to recheck the patient for 2 weeks after the initial examination, he or she can be sued for malpractice.

Proving Harm Resulting from Negligence

Doctors, like everyone else, make mistakes. The simple fact that what the doctor first believed to be a heat rash turned out to be German measles, does not necessarily implicate the doctor as liable for a lawsuit. Patients trying to prove medical malpractice must prove that the doctor’s negligence has caused foreseeable harm, such as:

  • Pain and suffering
  • Medical bills
  • Loss of earning capacity
  • Loss of capacity for enjoyment

It is not enough to show that the patient experienced any of these problems; it must be shown that the delayed diagnosis was responsible for the negative effects.

If you or a loved one has experienced a delay in obtaining a proper medical diagnosis and has suffered physical pain, emotional trauma, and/or financial loss as a result, you should contact a skilled medical malpractice attorney to discuss your options.

About the Author
Greg Kohn is a partner at Nagel Rice and specializes in complex civil litigation cases, including professional malpractice, personal injury, class actions, wrongful death, products liability, and commercial litigation.  He has extensive experience representing clients in both state and federal court. Greg has tried many jury trials to verdict and has recovered over $50 million in settlements and verdicts in all types of personal injury matters including automobile accidents, wrongful death cases, slip and falls, and other catastrophic injury cases. Greg also handles medical malpractice cases, involving misdiagnoses, wrongful birth, and delayed cancer diagnosis. If you have questions regarding this article, you can contact Greg here.