Failure to Diagnose: A Medical Malpractice Victim’s Guide

Misdiagnosis and failure to diagnose are two of the most common forms of medical malpractice. However, proving that a diagnostic error constitutes medical malpractice can be challenging, and cases involving misdiagnosis or failure to diagnose require incredibly complex investigations as well as expert witness testimony and a thorough understanding of the law.

If you or a loved one has suffered harm because of a diagnostic error, it can be difficult to understand your options and know where to turn for help. In this article, we’ll provide some background about medical malpractice claims that arise from diagnostic errors and explain what you should do if you’ve been affected.

Misdiagnosis Harms Millions of People Each Year

According to a 2014 study, diagnostic errors affect 12 million people each year. While some of these misdiagnoses are minor, about half of them have the potential to cause serious harm to patients. And while you might expect that diagnostic errors usually occur in hectic hospital wards and emergency rooms, most of these errors actually happen in an outpatient setting like your family doctor’s office.

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Diagnostic errors can come in several different forms, including:

  • Misdiagnosis: Wrongly identifying the patient’s medical condition
  • Late diagnosis: Failing to diagnose the patient’s condition promptly
  • Failure to diagnose: Failing to identify the patient’s medical condition altogether

Diagnostic mistakes can occur for a variety of reasons. For example, a patient might fail to give the doctor their full medical history. Other times, test results are flawed. And sometimes, doctors simply don’t perform their work with the care and thoroughness that’s expected of them.

Shockingly, most misdiagnosis claims arise from breakdowns in the basic functions of a medical practice. In many of these cases, the doctor commits a fundamental error like failing to order a test, review a study, contact a patient, or provide an appropriate referral.

Commonly Misdiagnosed Medical Conditions

Any medical condition can be misdiagnosed. However, studies suggest that some conditions lead to diagnostic errors more frequently than others. Some of these commonly misdiagnosed conditions include:

  • Acute renal failure
  • Cancer
  • Congestive heart failure and heart attack
  • Lupus
  • Multiple sclerosis
  • Pneumonia
  • Pulmonary embolism
  • Stroke
  • Urinary tract infection

Various kinds of bacterial and viral infections are also sometimes diagnosed dangerously late, which can result in sepsis, compartment syndrome, and other serious complications.

What Should I Do After a Misdiagnosis?

It can take time to identify a misdiagnosis. However, once you discover the error, you should act quickly. In Virginia, you must file a medical malpractice claim within two years of the date when the negligent act occurred. There are some special exceptions to this two-year timeframe, but unless an attorney specifically advises you otherwise, you should assume the statute of limitations in your case is two years. If you miss this deadline, you’ll automatically lose your right to compensation.

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You should also seek appropriate medical care to assess your current condition and identify appropriate treatment. When you visit the doctor, make sure you provide them with a detailed history of your medical treatment, the progression of your symptoms, and the treatment you have received. Make sure not to visit the same doctor or practice that committed the initial diagnostic error — at this point, you shouldn’t have any contact with them unless it’s through your attorney.

As soon as possible after discovering a diagnostic error that caused harm, schedule a meeting with an experienced medical malpractice lawyer. As you prepare for your initial consultation with your attorney, gather and organize as much information as you can that’s related to your case, including any medical records and medical bills you have.

Misdiagnosis Claims Require Expert Legal Guidance

To successfully pursue a misdiagnosis or delayed diagnosis claim, you must prove that:

  • There was a doctor-patient relationship
  • The doctor would have arrived at the correct diagnosis if they had followed accepted standards of care
  • You were harmed by the missed or delayed diagnosis and suffered damages

Not every diagnostic error meets this standard. For example, suppose you visit your primary care doctor and tell them about back pain you’ve been having. Your doctor runs a variety of initial tests, but nothing shows up that is concerning. Your doctor diagnoses you with a sprain and prescribes anti-inflammatory medications as well as stretching exercises, and they schedule a follow-up appointment in four weeks.

However, during that four weeks, your symptoms worsen, and your doctor responds by sending you to an orthopedist. The orthopedist orders an MRI, which reveals a herniated disc that’s pressing on your sciatic nerve. The orthopedist determines that the best course of treatment is to schedule surgery right away.

In this case, your primary doctor might have acted according to accepted standards of care, even though they waited to refer you to the specialist. Doctors often try to prescribe less drastic treatment before resorting to more serious measures — if they didn’t, our medical treatment system wouldn’t be able to handle all the expensive, unnecessary tests and procedures that would result. And in this hypothetical case, as soon as your doctor discovered that your injury was getting worse, they took appropriate medical actions.

However, suppose your physician instead ignores your complaints and takes no further action after the follow-up appointment. For months afterward, you keep scheduling appointments and complaining of increasing numbness and weakness. Rather than referring you to a specialist, the doctor tells you not to worry about your symptoms and advises you to lose weight. Finally, when your leg starts to drag, you go to the emergency room; an MRI taken there reveals your herniated disc.

The specialist at the hospital tells you that because the disc was pressing on nerves in your spine for so long, you’ll likely suffer permanent damage. While the physicians promise to do their best to fix the damage, they expect that you’ll face a long and difficult road of treatment and recovery.

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In this case, there’s a strong argument to be made that the physician’s failure to diagnose your condition and provide appropriate treatment or a referral resulted from their failure to follow accepted standards of care.

However, most cases that involve diagnostic errors aren’t as clear-cut as either of the examples above. In many cases, the doctor makes subtler mistakes that delay your treatment, and finding these mistakes requires a detailed and highly technical analysis. Sometimes doctors and hospitals even take steps to cover up negligent behavior. If your attorney only dabbles in medical malpractice claims, they may struggle to identify and prove medical negligence.

If you’ve suffered harm because of a misdiagnosis, late diagnosis, or failure to diagnose, it’s critical that you work with a medical malpractice lawyer who has extensive experience handling complex medical malpractice claims. When evaluating attorneys, don’t hesitate to ask them about their medical malpractice track record and their familiarity with your condition.

Phelan Petty: Virginia Attorneys Specializing in Complex Medical Malpractice Claims

At Phelan Petty, our medical malpractice team has built a reputation for excellence. We carefully analyze medical records and nursing notes to uncover evidence of negligence, and we consult with respected and renowned medical experts to demonstrate accepted standards of care. In every case we handle, we demand justice and aim to maximize our clients’ recoveries.

If you or someone you love has suffered harm in Virginia because of a medical professional’s negligent behavior, the team at Phelan Petty is here to help. To get an initial case assessment from an experienced attorney at no cost to you, fill out our online contact form or call us at 804-980-7100.


Singh, H. Meyer, A., & Thomas, E.J. (2014, May 5). The frequency of diagnostic errors in outpatient care: Estimations from three large observational studies involving U.S. adult populations. BMJ Quality & Safety, 23, 727-731 . Retrieved from

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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