Malpractice Claims for Delayed Diagnosis - Legal Overview

When the right diagnosis isn't a timely one, a patient harmed by the delay may have a medical malpractice claim.

When most people think of medical malpractice, they think of a doctor’s mistake leading directly to a patient’s injury, such as a slip of a scalpel during surgery or a dose of the wrong medication. But many medical malpractice cases result from doctor errors that cause indirect harm to patients, such as delayed diagnoses.

How is Delayed Diagnosis a Medical Malpractice Case?

In a medical malpractice case based on a delayed diagnosis, the patient would have been harmed even if the doctor had never become involved.

For example, imagine a patient has a treatable form of cancer. The patient visits a doctor, but the doctor fails to properly diagnose the cancer for several months. By the time the cancer is properly diagnosed, it has spread throughout the patient’s body, and it is no longer treatable. The patient soon dies from the disease.

In this scenario, the doctor did not directly cause the patient’s death. Had the patient ignored the symptoms and never visited the doctor, the death still would have occurred at roughly the same time. However, the doctor did indirectly cause the death of the patient because a proper cancer diagnosis would likely have prevented the death. Therefore, the doctor might be liable for the delay and resulting injury.

What a Patient Must Prove

Patients must prove three basic elements to win a medical malpractice case:

  • doctor-patient relationship
  • negligence, and
  • harm caused by the negligence.

In the sections below, we’ll take a closer look at each of these elements in the context of a medical malpractice case based on delayed diagnosis. For a more general discussion, see Medical Malpractice: What You Need to Prove.

Establishing the Doctor-Patient Relationship

This requirement is relatively simple. When a doctor examines a patient or provides treatment, a doctor-patient relationship is generally established. In delayed diagnosis cases, patients must only show that a doctor-patient relationship existed at some point. A patient need not demonstrate that a doctor-patient relationship existed during the entirety of the delay.

So, if the cancer patient in the example above only visited the doctor once, the doctor would still be responsible for the harm resulting from the delay in properly diagnosing the patient -- harm that is mostly attributable to the passage of time during which the patient wasn’t getting proper treatment for the undiagnosed condition -- even though the doctor-patient relationship may have technically ended at the conclusion of the initial visit.

Proving Negligence

Doctors act negligently when they fail to provide the quality of care that other reasonably competent doctors would have provided under similar circumstances. In medical malpractice lawsuits, patients must prove two things to demonstrate negligence:

  • standard of care, and
  • breach of the standard of care.

Standard of Care

"Standard of care" is a legal term that refers to the level of competence that most doctors would have achieved in similar circumstances.

In a delayed diagnosis case, standard of care basically boils down to the question, "how quickly would a reasonably competent doctor have properly diagnosed the illness?" The patient must meet the burden of establishing standard of care by proving the answer to that question.

In the vast majority of cases, this requires expert testimony. The patient (usually under the guidance of his or her medical malpractice attorney) consults a doctor who specializes in the relevant field, and the doctor offers an opinion as to how quickly a reasonably competent doctor would have properly diagnosed the patient under similar circumstances.

Breach of the Standard of Care

The next step is to prove that the defendant doctor breached the standard of care. In delayed diagnosis cases, breaches are often easy to identify. If a patient establishes that the standard of care required the doctor to diagnose an illness within 24 hours and the doctor took 72 hours to make the diagnosis, the doctor breached the standard of care.

Showing Harm Caused by Negligence

In order to win medical malpractice lawsuits, patients must prove that their doctors’ negligence caused foreseeable harm. This harm can take many forms, including:

  • pain and suffering
  • cost of medical bills
  • loss of earning capacity, and
  • loss of the ability to enjoy life’s pleasures in the same way as prior to the injury.

(See Types of Damages and Compensation in a Medical Malpractice Case for a more thorough list).

The critical issue is whether the delayed diagnosis actually caused the harm. It is insufficient to show that a patient suffered harm after a delayed diagnosis.

For example, assume a patient is experiencing back pain and decides to visit a doctor. Although a reasonably competent doctor would quickly diagnose the patient as having a herniated disk, the doctor fails to do so in this case. One week later, the patient returns, and the doctor correctly diagnoses the back problem. The patient has surgery to correct the problem. The doctor acted negligently by failing to timely diagnose the herniated disk. However, the patient probably will not be able to win a medical malpractice lawsuit for the cost of the surgery and associated pain and suffering because the surgery would have been necessary even if the doctor had made the proper diagnosis immediately.

On the other hand, assume that in the above example, the patient’s herniated disk caused "cauda equine" syndrome, which is considered a medical emergency because it must be surgically repaired within about 48 hours or permanent debilitating harm will result. In that case, the doctor could be liable for malpractice. Had the doctor timely made the proper diagnosis, most of the harm could have been avoided. Since the delay caused the harm, the doctor could be liable.

See an Expert

Because medical malpractice cases follow a complex body of rules and often involve complicated medical questions, it is often essential to get advice or representation from a lawyer, who will then take all necessary steps to protect your legal rights, including finding and utilizing the best expert witnesses to bolster your case.

Talk to a Lawyer

Start here to find personal injury lawyers near you.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Make the Most of Your Claim

Get the compensation you deserve.

We've helped 175 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you