Can You Sue the Doctor Who Misdiagnosed You?

If a doctor gave you the wrong diagnosis and your condition got worse, you may have a valid medical malpractice claim.

By , J.D. · University of San Francisco School of Law

If a doctor fails to make an accurate and timely diagnosis of a harmful medical condition, a patient might be able to pursue a legal remedy by filing a medical malpractice lawsuit. But it's important to keep in mind that mistakes and bad outcomes don't always mean medical negligence has occurred, at least not in the eyes of the law. (Learn more about when it's medical malpractice—and when it isn't.)

The key question in these kinds of cases is whether the health care provider breached the applicable "medical standard of care" under the circumstances. In other words, would a similarly-trained doctor in the same medical community have spotted the health problem (or identified it within a shorter period of time)? In the sections that follow, we'll discuss some common misdiagnosis scenarios, and illustrate how this kind of medical malpractice claim might proceed.

Common Types of Misdiagnosis

While there are as many potential misdiagnosis scenarios as there are diseases and other health problems, some of the most common types of misdiagnosis are:

  • asthma (often misdiagnosed as recurring bronchitis)
  • cancer (misdiagnosis can lead to painful, debilitating and unnecessary treatment like chemotherapy and radiation)
  • heart attack (can be mistaken for indigestion, panic attack, or other issue)
  • lymph node inflammation (can be mistaken for appendicitis)
  • staph infection (may be misdiagnosed as common flu)
  • stroke (may be dismissed as migraine or other comparatively minor issue, especially in younger patients)

Typically a misdiagnosis case involves either a delayed diagnosis or mismanagement of diagnostic testing. Misdiagnosis may also involve:

  • failure to screen for a particular medical condition
  • failure to refer a patient to a specialist
  • misinterpretation of lab test results
  • failure to properly consult with the patient as to his or her symptoms, and
  • failure to properly follow up and investigate potential causes of symptoms that are reported.

Medical Malpractice Lawsuits for Misdiagnosis

When it comes to lawsuits over misdiagnosis, plaintiffs usually need to follow the same proof steps as in any other kind of medical malpractice case. It typically must be shown that, in failing to accurately diagnose a harmful health condition, the doctor failed to demonstrate the level of skill that a similarly-trained and experienced doctor would have shown under the circumstances. The treatment details—what should have been done, and what was actually done—must be laid out, usually by a qualified medical expert. It must also be shown that the doctor's provision of sub-standard care led to harm to the patient.

Who can be sued?

In most cases, only the primary physician (your doctor) can be sued for misdiagnosis. In rare cases, other health care professionals may also be liable if their negligence caused or contributed to the patient's harm—including nurses, lab techs, and any specialists who may have seen the patient. The hospital or health care facility where the doctor practices usually cannot be sued for harm caused by misdiagnosis. That's because most doctors are independent contractors, not employees of the hospital, so the facility can't be held legally responsible for the doctor's negligence.

Showing harm to the patient.

It's not enough to show that the doctor failed to make the right diagnosis. A medical malpractice case will only be successful if it's shown that the misdiagnosis resulted in harm to the patient. Misdiagnosis or delayed diagnosis may cause harm to the patient in a variety of ways, including:

  • exposing the patient to more aggressive treatment than would have been required if the disease or medical condition had been diagnosed earlier
  • needlessly exposing the patient to harmful courses of treatment (such as radiation or chemotherapy)
  • performing unnecessary surgical procedures (especially where scarring or disfigurement results)
  • increased likelihood of complications, and
  • increased likelihood of death.

Learn more about proving a medical malpractice case based on misdiagnosis.

Watch the Statute of Limitations in a Misdiagnosis Case

Finally, in any medical malpractice case—in any type of lawsuit for that matter—plaintiffs need to be mindful of time limits for going to court and getting the lawsuit process started. You need to file the initial document (the complaint) within a certain amount of time after you suffered the harm that led to the lawsuit. These deadlines are set by state laws (statutes), so they're called "statutes of limitations." In some jurisdictions, the statute of limitations "clock" might not begin to run until the discovery of the injury, or until the patient had a reasonable opportunity to discover the injury. For example, in California, a patient has three years to file a medical malpractice lawsuit after the harm occurs, or one year after the harm is discovered, or should have been discovered (whichever comes first). Learn more about the statute of limitations for medical malpractice lawsuits.

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