Can You Sue the Doctor Who Misdiagnosed You?

If a doctor fails to properly diagnose a medical condition, their patient might have a valid 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.)

Let's look at some common misdiagnosis scenarios, and illustrate how this kind of medical malpractice claim might proceed.

What Are 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 involve:

• 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 some 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 their symptoms
• failure to properly follow up and investigate potential causes of symptoms that are reported, and
• failure to properly provide diagnostic medication, altering the patient's response to the medication and leading to the wrong conclusion

How Do I Prove a Medical Malpractice Case 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.

The key question is whether, when diagnosing the patient's condition, the health care provider breached the applicable "medical standard of care." 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)?

This standard, and the treatment details—what should have been done, and what was actually done—must be laid out, usually by a qualified expert.

How Do Expert Witnesses Help In a Misdiagnosis Case?

Medical experts for the patient's side of the case will be hired by the patient's lawyer. The expert is typically a doctor who has experience with the type of health problem or procedure that's at the heart of the case.

The expert provides an opinion regarding what a reasonably competent doctor would have done under the circumstances. Generally, when an improper diagnosis is involved, the expert will talk about the "differential diagnosis" that a reasonably competent doctor would have conducted. To do this, a doctor makes a list of all of the possible medical problems that could be causing the patient's symptoms. The doctor then conducts tests on the patient, ruling out various possibilities until a definitive diagnosis can be determined.

Learn more about how medical experts help prove medical malpractice.

Misdiagnosis Must Cause 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. (The legal word for this kind of harm is "damages".) 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 damages in a medical malpractice case.

Who Can Be Sued for Misdiagnosis?

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 can't 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 typically be held legally responsible for the doctor's negligence.

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 laws 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.

Before you decide you're ready to sue a health care professional for failing to properly diagnose a disease or other health problem, it's probably a good idea to discuss your situation—and your chances of success—with an experienced legal professional. Learn more about finding a medical malpractice lawyer.