Misdiagnosis & Failure to Diagnose

Medical Diagnostic Mistakes

Medical misdiagnosis or failure to diagnose is far more common than you might imagine. Every year roughly 12 million adults could experience outpatient diagnostic mistakes. ⁽³⁾ Even worse, 50% of these “diagnostic errors have the potential to lead to severe harm.” Roughly 6 million patients may have received a wrong diagnosis.⁽⁴⁾

Misdiagnosis: The Percentages

Depending on the source of information, anywhere from 5% to 17% of patients may be misdiagnosed or fail to receive a correct diagnosis each year. Also, fatal illnesses seem to be misdiagnosed more often than less severe medical conditions. One study found almost 25% of major medical diagnoses were missed. ^{(5) (6) (7)} A Harvard Medical review of “autopsy studies covering four decades found that approximately 9% of patients experienced a major diagnostic error that went undetected while the patient was alive.” ⁽⁸⁾

Deaths Due to Misdiagnosis: The Numbers

Estimates suggest anywhere from 40,000 to 80,000 deaths in hospitals each year are related to medical misdiagnosis. In addition, “Estimates from national malpractice data suggest that serious morbidity is at least as common as death.” This means roughly 80,000 to 160,000 patients experience serious misdiagnosis-related harms each year. ⁽⁹⁾ Some studies indicate 33% of diagnostic errors in primary care alone resulted in significant permanent damage or inevitable death. According to these studies, 4 million or more patients were seriously harmed, including at least 1.7 million patients who died due to diagnostic error. ⁽¹⁰⁾

Deadly Cases: Vascular Events, Infections, and Cancer

Across the different medical practice settings, “missed vascular events, infections, and cancers … account for most of the morbidity and mortality attributable to diagnostic errors.”⁽¹¹⁾

Roughly 75% of serious misdiagnosis-related harms are linked to vascular events, infections, and cancers: ⁽¹²⁾

• Vascular events include stroke, heart attack (myocardial infarction), venous and arterial thromboembolism, and aortic aneurysm and dissection.
• Infections include sepsis, meningitis and encephalitis, spinal abscess, pneumonia, and endocarditis.
• Types of cancer include lung, breast, colorectal, prostate, and melanoma.

Some research suggests more than half of these high-severity harm cases (52.0%) involve claims against four major medical disciplines: internal medicine, emergency medicine, family medicine, and radiology. ⁽¹³⁾ Other research suggests nearly 6 in 10 medical malpractice lawsuits were due to a missed or delayed diagnosis of cancer, followed by infection, fracture, and myocardial infarction. Of these lawsuits, 24% involved breast cancer. ⁽¹⁴⁾

Ways Doctors Make Diagnostic Mistakes

Diagnostic error can be defined in different ways. It includes a mistake or failure when diagnosing, leading to a misdiagnosis. A missed or delayed diagnosis is also a diagnostic error. ⁽¹⁵⁾ The diagnostic process can be broken down into stages.

A diagnostic mistake can occur at any stage: ⁽¹⁶⁾

1. Access and presentation.
2. History taking/collection.
3. Physical exam.
4. Testing.
5. Assessment.
6. Referral.
7. Follow-up.

Mistakes can lead to a range of possible harm, including severe harm.

Failures in Clinical Judgment

Some research suggests “failures in clinical judgment” may be a “leading identified cause of serious misdiagnosis-related harms.” Basically, this research suggests most “diagnostic process failures happen in bedside assessment and clinical reasoning.” ⁽¹⁷⁾ You may suffer from a medical professional’s failure to recognize complications. There might also be damage done to your health from a doctor’s failure to diagnose a related disease, or even a failure to diagnose an unrelated disease. Just one example of failure in clinical judgment would be diagnosing someone with cancer when they do not really have cancer. Overdiagnosing, and then prescribing unnecessary treatments, can be its own kind of medical misdiagnosis. ⁽¹⁸⁾ As another example, “A too-common missed diagnosis is the experience of a woman who is sent to a gastroenterologist for stomach symptoms, but her real problem is ovarian cancer, which requires a gynecologist.” ⁽¹⁹⁾ Injuries caused by the failure to diagnose cancer include inoperable cancer, premature death, significantly more expensive treatment, and an increased risk of cancer recurrence.

Happens in Many Medical Settings

Medical misdiagnosis or failure to diagnose can occur in a variety of settings. You might automatically think of the seriousness of hospitals and the urgency of emergency rooms. However, diagnostic mistakes can also occur in primary and specialty care settings, retail clinics, nursing homes, and rehabilitation centers. ⁽²⁰⁾ Misdiagnosis or failure to diagnose can happen in any setting where there are health care professionals.

How to Prevent Misdiagnosis

Your first goal is to prevent being misdiagnosed.

• Talk to your doctor.
• Ask questions.
• Conduct your own research.
• Get a second opinion.

To help, know your symptoms and be able to tell your doctor exactly what they are. Make sure your doctor understands what you do — or don’t — feel. If your doctor says something and it does not sound right, ask questions. Get clarification on anything not making sense to you. Do your own research about the medical treatment you are receiving. Search the Internet for reputable health and medical sources like the Mayo Clinic, the Cleveland Clinic, or Johns Hopkins Medicine. Government sites, both state and federal, are reliable sources. Contact other doctors to get a second or third opinion regarding your treatment. If the answers you get do not seem to align with your symptoms, keep looking until you get answers and treatments appropriate for your illness.

What To Do If You Have Been Misdiagnosed

If you believe you have been misdiagnosed, you need to consider your options. Your first goal is to pursue accurate medical information and get the treatment you need to protect your health. Your second goal may be to get justice and compensation for any harm you suffered due to a failure to diagnose or a misdiagnosis. Ultimately, if you think health care professionals have misdiagnosed you or a loved one — and you have been harmed because of the misdiagnosis — seek guidance from a reputable attorney who handles medical malpractice lawsuits. You may be entitled to compensation.

How to Prove a Failure to Diagnose Case

Just because a doctor misdiagnosed you or failed to diagnose you correctly does not necessarily mean you have a medical malpractice legal case. First, you have to determine if a doctor-patient relationship existed between you and the medical professional who diagnosed you. If the relationship did not exist, you may not be able to file a lawsuit against the doctor. You may still, however, be able to file one against the facility where you received care. Next, your attorney needs to discover if your doctor was negligent. It’s necessary to determine if your doctor failed to provide you with appropriate treatment in a reasonably skillful and competent manner.

Errors in Diagnosis

Your attorney needs to evaluate the success of the diagnosis method the doctor used in deciding how to treat your condition. Typically, in a differential diagnosis method, your doctor considers at least two conditions possibly causing your symptoms.

Doctors can make mistakes in a number of ways:

• They relied on inaccurate or incorrect exam results.
• Their diagnostic equipment was faulty.
• Some kind of human error occurred.

The doctors often order tests to help determine their diagnoses. Your attorney looks for possible errors in the diagnosis and the diagnostic tests. If your doctor’s negligence caused you actual injury, you may have a case of medical malpractice. Your attorney can help you evaluate your specific situation and whether it is a misdiagnosis or failure to diagnose. An experienced attorney knows what to do when it comes to filing a medical malpractice lawsuit.

Statute of Limitations for Lawsuits

Every state in the country has its own specific deadlines for filing personal injury lawsuits. The same is true for medical malpractice statutes of limitations. In New York State, the statute of limitations is two years and six months from the time you were injured. For children (those younger than 18), this two-and-a-half-year time period begins after the patient becomes 18. ⁽²¹⁾

Discovery Rule

In civil actions, such as medical malpractice lawsuits, “parties use the pre-trial discovery process to gather information in preparation for trial.” ⁽²²⁾ Under the Federal Rules of Civil Procedure, “plaintiffs who strongly suspect that they were wronged can file a lawsuit, even if they do not have solid evidence.” This means your attorney can legally force the doctors, hospitals, and health care providers who harmed you to provide evidence. Your attorneys can use this evidence to build your case against the medical professionals who misdiagnosed you. ⁽²³⁾ The Federal Rules also allow your medical malpractice attorneys “to get information from other parties, including interrogatories, depositions, and requests for admission.” Your attorneys “may also compel other parties to give them access to documents, real property, or other things for review or testing.” ⁽²⁴⁾

Statute of Repose

A statute of repose is, “Any law that bars claims after some action by the defendant, even if the plaintiff has not yet been injured.” In this case, “the time period begins to run from the date of the defendant’s action even if the injury is yet to occur.” ⁽²⁵⁾ Because of the varying statutes and requirements, you need experienced, reputable medical malpractice attorneys who know exactly what they are doing. Attorneys who have handled hundreds, and even thousands, of personal injury lawsuits. Attorneys who know the ins and outs of legal strategy and proceedings.

How W&L Can Help

Diagnostic errors are “the most common, most catastrophic, and most costly of serious medical errors in closed malpractice claims.” ⁽²⁶⁾ The doctors and other health care professionals or facilities causing you harm through their misdiagnoses have some of the best attorneys defending them. To go up against them, you need a firm with a solid history of squaring off against these medical institutions and winning. Weitz & Luxenberg is one such firm. We are recognized nationally and have a solid legal reputation. Our attorneys know New York medical malpractice law inside and out. Even more importantly, we have a history of winning. Over the years, we have won more than $18 billion on behalf of our clients.

Here are a just couple examples of wins for our clients:

• Almost $2 million – W&L secured this settlement on behalf of the estate of a 51-year-old woman who ultimately died of a ruptured appendix. She was misdiagnosed by multiple health care providers on several occasions and never received appropriate treatment.
• More than $6 million – W&L achieved this settlement on behalf of a family whose infant daughter suffered brain damage when she was 6 weeks old. She developed meningitis and sepsis due to bacteria. She was misdiagnosed and therefore did not receive timely, appropriate treatment.