The results when a diagnosis is either missed or delayed can be catastrophic. It may mean that the patient receives no treatment, the wrong type of treatment, or a delay in starting treatment. If a missed or delayed diagnosis results in injury, illness or death, it may be possible to bring a medical malpractice claim against the physician or physicians responsible.

Not every error of judgment makes a doctor liable for negligence. Like all of us, doctors make mistakes. However, unskillfulness or carelessness leading to an error when it comes to diagnosis can lead to liability. 

This article looks at some of the principles of negligence law applied to missed or delayed diagnoses. While a misdiagnosis alone does not establish negligence for the purposes of a medical malpractice lawsuit, in the right circumstances, it may be possible to obtain compensation if the failure has caused an injury.

What is a misdiagnosis?

A variety of types of misdiagnosis can cause harm to patients. Firstly, if a patient remains undiagnosed and is not treated, it is possible that this failure can lead to injury or worse. 

A delay in the diagnosis can also cause harm. This may occur when an individual is initially passed clear even though a reasonably skilled doctor would have detected the condition but then subsequently diagnosed and treated it. Due to the delay, the patient may be in a worse position to respond to the treatment.

Misdiagnosis also encompasses the situation where a patient is treated for a condition they don’t have.

What are the elements of a negligence claim?

To successfully bring a negligence claim, the patient needs to prove on the balance of probabilities that:

  • the defendant owed them a duty of care;
  • the defendant breached the standard of care
  • they sustained an injury; and 
  • the injury was caused by the breach of the standard of care.

It is well established that doctors and medical practitioners owe a duty of care to their patients. This does not just apply to the doctor that actually consults with the patient but also to other doctors involved in the patient’s care, such as specialists who review and analyze test results.

As a result, the key issues are often whether the doctor or doctors breached the standard of care and, if so, whether the breach caused an injury. These are considered in turn, below. Both of these issues are complex. It is possible for experienced doctors to make diagnostic errors even when exercising reasonable care, and a misdiagnosis might not make a difference to the patient’s overall outcome.

What is the standard of care in relation to diagnosing an illness or injury?

To determine whether the medical professional breached the standard of care, the court will examine whether their acts or omissions met the standard expected of a reasonable, prudent and diligent doctor in the same circumstances. 

This is often informed by the evidence provided by expert witnesses, such as medical professionals of the same specialism as the doctor that misdiagnosed the plaintiff. The court will use this to determine the standards expected by a prudent doctor in the particular situation and whether the defendant’s doctor met those standards.

For example, imagine the case of a patient being monitored for the development of cancer. He underwent a chest x-ray, and the radiologist did not identify an abnormality. The year after, he is diagnosed with lung cancer. 

If there was an abnormality on the x-ray, the patient could argue that the radiologist was negligent. The success of this claim may depend on whether the expert evidence shows that a reasonable radiologist would have detected the abnormality in similar circumstances.

When does the failure satisfy the causation requirement?

If the doctor has breached the standard of care, the next issue is whether this caused the injury. The court applies a “but for” test, meaning the plaintiff needs to show that the injuries would not have occurred but for the doctor’s acts or omissions.

This may also require medical evidence to prove. The injury could have happened anyway, so the evidence needs to show that the injury would not have occurred without the misdiagnosis. Having said that, courts do not require causation to be established to the point of scientific certainty (it only needs to be proved on the balance of probabilities), and the court may draw an inference.

Returning to the example mentioned above, obviously, the radiologist didn’t cause the patient’s cancer. It was already present when the x-ray was conducted. However, suppose expert evidence showed that the growth in the tumour between the time the x-ray was taken and the diagnosis in the subsequent year would have negatively impacted the patient’s prognosis (for example, the cancer was treatable but is now incurable). In that case, the court may find that the breach of the standard of care caused the injury.

What is the remedy for a successful medical malpractice claim?

A successful medical malpractice claim before the courts, or a negotiated settlement, will likely result in compensation to assist the injured patient in recovering financially. We have provided more detailed information about compensation in a previous article. There are various types of damages potentially available, including compensation for pain, suffering and loss of amenities, loss of income and the cost of future care.

Contact the Personal Injury Lawyers at Cuming & Gillespie LLP for Advice on Missed or Delayed Diagnosis Claims

The medical malpractice lawyers at Cuming & Gillespie LLP are experienced in representing patients that have suffered injury after being misdiagnosed. We understand the technical details and work with medical experts to obtain the evidence required. As a result, we have the knowledge and experience to obtain the maximum compensation available in your situation. Please call us today at 403-571-0555 or contact us online to book an appointment for a free consultation.