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Can You Sue a Physician for Failure to Diagnose?

Jul 3, 2023 | Medical Malpractice

Failure to diagnose is the basis for many medical malpractice lawsuits. While most doctors are skilled and diligent professionals, they can sometimes make mistakes. Although not every error made by a doctor will rise to the level of negligence, a doctor may be held liable if a failure to diagnose resulted in a worsening of a patient’s condition.  

What is Failure to Diagnose?

“Failure to diagnose” is a form of medical malpractice in which a doctor fails to determine a patient’s medical condition. Not to be confused with misdiagnosis — where a physician fails to correctly diagnose a medical condition — failure to diagnose is all too common. While the results of this type of negligence can be minimal in some cases, they can mean the difference between life and death in others.     

Common conditions that often go undiagnosed can include the following:

  • Cancer
  • Aneurysms
  • Heart attacks  
  • Strokes
  • Blood clots
  • Pulmonary embolism
  • Many others

Making the proper diagnosis is crucial to protect a patient from measurable harm — and there are several steps doctors should take to avoid a failure to diagnose. While the actions a doctor is required to take may vary based on the circumstances and specific condition of the patient, they may have acted negligently if they did not ask certain questions, failed to send a blood test to the proper laboratory, or took other actions that did not meet the standard of care.   

What Does a Plaintiff Need to Prove in a Failure to Diagnose Case?      

In order to prove liability in a failure to diagnose case, a plaintiff must establish that the doctor failed to exercise the degree of care and skill expected in their profession, and that the failure was the proximate cause of the injury. In other words, the plaintiff must demonstrate that a doctor in the same specialty would not have failed to diagnose the condition. 

However, the required proof can vary in medical malpractice cases, depending on the specific facts. In the event the disease is particularly difficult to diagnose in accordance with the accepted medical standards, a physician may be held to a different standard when diagnosing the condition. To demonstrate a claim for failure to diagnose, sufficient evidence is required to show the doctor was negligent. Evidence can include medical records, doctor’s notes, witness statements, photographs, and copies of correspondence. Expert testimony may also be needed to determine whether the healthcare provider negligently failed to diagnose, and if such failure resulted in the plaintiff’s harm. 

Compensation for Failure to Diagnose

A doctor’s failure to diagnose can lead not only to physical and emotional harm, but a plaintiff may also incur a substantial amount of financial losses. If a plaintiff can prove a doctor’s liability, they may be entitled to recover their medical costs, lost wages, future lost earnings, and out-of-pocket expenses. Non-economic damages for physical pain, emotional suffering, and loss of enjoyment of life may also be awarded. In medical malpractice cases, an award of non-economic damages often comprises the largest portion of a verdict or settlement.   

Under New York State law, there is only a limited amount of time to bring a medical malpractice case — a plaintiff typically has 2.5 years from the date of injury to file a lawsuit. However, it’s vital to note that there are certain exceptions to this rule, such as in cases where the “discovery rule” applies. It’s critical to discuss your case with an attorney as soon as possible to avoid your claim being barred by the statute of limitations.

Contact an Experienced New York Medical Malpractice Attorney

The Edelsteins, Faegenburg & Brown, LLP is an established New York personal injury firm that has been fighting for the rights of victims of medical malpractice since 1937, including those who have been injured due to failure to diagnose. Handling every case with personalized attention, skill, and integrity, the firm has earned a well-deserved reputation among our clients and colleagues — and we regularly secure verdicts and settlements in the millions for our clients. Contact us to schedule a free consultation at (212) 425-1999 today.




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