Medical Malpractice: Failure to Diagnose

Noble McIntyre on June 24, 2014


When we visit a doctor and the doctor says that the condition is nothing serious, we breathe a sigh of relief. But, there can be occasions when perhaps we feel relieved too soon. The perception of medical malpractice is that it’s about a doctor making a mistake during surgery, or prescribing the wrong dose of medication, but that’s not always the case. The most common medical malpractice claim is for failure to diagnose, which accounts for about 40 percent of all cases filed.

What is failure to diagnose?

Failure to diagnose is a little more complicated than it sounds. Doctors, like everyone else, make mistakes. Medicine is a science, but it is not fool-proof. If your doctor has failed to diagnose a condition, that doesn’t mean that you necessarily have a claim for failure to diagnose. The medical professional must have acted negligently in order for you to succeed in this kind of claim. This means that the treatment you received did not rise to the standard of care that is the agreed-upon method of treatment for a condition or illness that is used by medical providers in the specific geographic area. The law allows for doctors to make mistakes, even some big ones. Therefore, in order for failure to diagnose to be the basis for a malpractice claim, experts will need to be able to testify that the physician did not treat the patient with the usual standard of care.

How would I show that the physician failed to diagnose my condition?

In order to bring a claim for failure to diagnose, you must be able to show a few things. First, that you suffered some harm as a result of the doctor’s failure to diagnose or misdiagnosis of your condition. For example, if your appendix burst after a doctor said that he thought the pain was caused by constipation, you could likely show that the harm (your appendix’ having burst) was a result of the doctor’s failure to determine that condition at your office or hospital visit.

Second, you need to show that the doctor acted negligently. This could mean that she or he didn’t ask you certain questions, didn’t send the blood test to the correct lab, or didn’t order specific tests needed to diagnose your condition. In order to prove this, you would need to be able to show that a reasonable physician would have been able to correctly diagnose the illness based on the same set of information, symptoms or circumstances.

Third, there are some other factors that would come into play. Presumably, if you’re visiting the doctor for specific symptoms or illness, those symptoms would eventually cause some harm, and it’s possible that the harm could occur with or without treatment. If the harm could have occurred even if the condition had been treated, it would be hard to make a claim for failure to diagnose. Also, if the condition is outside the scope of the physician’s area of expertise, she or he would not be expected to diagnose it.

Finally, if you or any other doctor gave the doctor in question any misleading or incomplete information about your condition or medical history, that could affect the doctor’s ability to accurately diagnose the current problem.

How do I proceed with a claim for failure to diagnose?

All of this information does not mean that you can’t win a case for failure to diagnose or misdiagnosis of a medical condition. What it means is that these cases are hard to prove, and that you need the counsel of an experienced medical malpractice attorney. The attorneys at McIntyre Law, P.C. have years of experience handling Oklahoma medical malpractice cases, and we should be your first call if you think that your condition has been improperly diagnosed. We will guide you through every step of this complicated case, from obtaining your medical records, to consulting experts, to taking the physician to court, if that’s the correct direction in which to go. Call us today at 1-877-917-5250 for a free consultation.

Medical/Surgical Operative Photography by phalinn, on Flickr
Creative Commons Attribution 2.0 Generic License  by  phalinn 

Noble McIntyre

Noble McIntyre is the senior partner and owner of McIntyre Law who focuses primarily on drug litigation and catastrophic injury cases. He is currently representing clients injured by the drugs Paxil, Levaquin and testosterone therapy drugs and by clients affected by oil field injuries. His goal has and continues to be to work diligently on behalf of his clients to achieve the highest and best result for his clients’ injuries while maintaining professionalism and abiding by all ethical standards of his profession. Read more about Noble McIntyre.


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