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Failure to Diagnose FAQs

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July 25, 2022

What is a failure to diagnose?

A failure to diagnose generally occurs when a physician or other healthcare provider does not diagnose a patient’s current medical condition or makes the correct diagnosis but not within a timely manner. It may also happen when the healthcare provider misdiagnoses the patient, thereby preventing the correct diagnosis and treatment from occurring. This can lead to a patient’s injury getting worse or, in the worst case, becoming untreatable due to the delay. These errors can lead to physical and emotional suffering, and financial loss, for the patient. A healthcare provider’s failure to diagnose a medical condition can give rise to a legal claim for medical malpractice.

Can I bring a failure to diagnose claim for a delayed diagnosis?

Yes. When a medical condition should have been diagnosed sooner, or when the healthcare provider misses the correct diagnosis, this may be grounds for a failure to diagnose medical malpractice claim.

How do I prove a failure to diagnose?

In any medical malpractice claim, including a failure to diagnose, you need to prove four elements in order to be successful at trial. Not all failures to diagnose a medical condition are considered medical malpractice. In order to prove a failure to diagnose claim, you must show that:

  • The healthcare provider owed you a duty of care as a patient;
  • The healthcare provider breached that duty of care (by failing to correctly and promptly diagnose your medical condition);
  • You suffered harm (such as physical, emotional, or financial harm); and
  • Your harm was caused by the healthcare provider’s breach (the failure to diagnose).

Proof of these four elements requires evidence, including medical expert testimony, that the healthcare provider caused harm to the patient by falling below the standard of care - here, by failing to make a diagnosis appropriately or timely. An experienced medical malpractice attorney will help you to gather the necessary evidence, and retain reliable medical experts, so that you have as strong a claim as possible to succeed and maximize your compensation. Even in a case that settles out of court, as many of our medical malpractice cases do, the strength of the evidence and experts is crucial to gaining a strong negotiating position and an optimal settlement.

What if I cannot prove a failure to diagnose?

If you are not sure that you can prove all the elements required for a successful failure to diagnose claim, you should first consult with an experienced medical malpractice attorney to discuss your individual case. The law in this area is complex, and you may have sufficient grounds and evidence to bring a legal claim, even if you think you do not. 

What is the statute of limitations for a failure to diagnose lawsuit?

The statute of limitations is the law that determines how long a victim has to bring a legal claim. The statute of limitations varies from state to state. In Delaware and Pennsylvania, the statute of limitations for a failure to diagnose claim is usually 2 years. In Maryland, the statute of limitations is generally 3 years. However, there may be exceptions to these general rules. Therefore, if you have been injured by a failure to diagnose, you should consult an experienced medical malpractice attorney, such as the attorneys at Morris James, as soon as possible. They can then evaluate the time period in which you can bring a potential medical malpractice claim.

What are common failure to diagnose claims?

Unfortunately, there are many medical conditions that can be undiagnosed, misdiagnosed, or subject to a delayed diagnosis. Some examples of these conditions include:

  • Heart attack or other heart conditions
  • Stroke
  • Aneurysm
  • Cancer
  • Meningitis
  • Asthma
  • Fetal distress
  • Infection
  • Fractures
  • Surgical injuries
  • Pulmonary embolism (P.E.)
  • Spinal abscess or cauda equina syndrome
  • Compartment syndrome
  • Other medical emergencies

There are many other conditions that a healthcare provider may misdiagnose or fail to diagnose in a timely manner, so if you have any concerns that your medical condition was not handled appropriately, you should consult an experienced medical malpractice attorney as soon as possible.

What damage or costs can I get compensation for after a failure to diagnose?

A delay in diagnosis, misdiagnosis, or failure to diagnose a medical condition can cause physical and emotional harm, and can have practical and financial consequences for the victim and their families. Victims of medical malpractice are entitled to be compensated for economic and non-economic damages resulting from the failure to diagnose. 

Types of damages that can be recovered include:

  • Medical bills, including physician, hospital, pharmacy, PT, rehab, and other medical expenses;
  • Future medical expenses;
  • Lost wages, both current and future;
  • Modifications to your home and/or vehicle;
  • Pain and suffering;
  • Loss of companionship or consortium; and
  • Damages for the patient’s passing.

If you pursue a failure to diagnose claim, you are permitted to recover compensation for all losses suffered, including the costs that will be incurred in the future as the patient returns to normal life, or to his or her new normal. An experienced medical malpractice attorney can help to identify all of the eligible costs and maximize a victim’s award or settlement. 

How much compensation can I get for a failure to diagnose?

Unfortunately, there is no easy answer to this question. Every case is very fact-specific, and it is often impossible to state with precision what a given case may be worth. Your compensation or settlement after a failure to diagnose will depend on a number of factors, including the extent of your injuries, pain, or disfigurement; the cost and discomfort of additional medical procedures required as a result of the failure to diagnose; any mental anguish as a result of your experience; your lost wages and loss of ability to earn in the future; and your loss of enjoyment of life.

A lawyer should never guarantee you a specific amount of financial compensation. However, an experienced medical malpractice attorney, such as the attorneys at Morris James, understands how these awards are calculated, how juries process this information, and how to maximize the award or settlement for their suffering client. In fact, the attorneys at Morris James have unique insight into valuing based on their prior experience defending healthcare providers and knowing how these claims are valued by defendants. With this knowledge, an experienced attorney can get a sense as to the range of value for a given claim so that you get the maximum amount of compensation that you deserve.

Do I need a lawyer for a failure to diagnose claim?

If you are considering bringing a failure to diagnose claim, you should have an experienced medical malpractice lawyer to advise and represent you. At the earliest stages, a good lawyer can explain your options and advise you on the strength of your case so that you can decide how to proceed. As the claim progresses, an attorney will handle communication and negotiation with insurers, hospitals, and other parties so you have more time to focus on healing. An experienced attorney will also have a network of qualified medical experts to assess your medical care and your injuries and will know how to provide the evidence that you need to be successful. In settlement negotiations or at trial, a lawyer has the experience and skills to present the relevant evidence in a compelling manner to achieve more compensation for you.

Ultimately, a lawyer will make the process of bringing a claim easier for you, and will maximize your compensation. It is well known that unrepresented plaintiffs receive (and accept) lower settlement offers, and tend to get lower compensation awards than victims who have legal representation. It is therefore important to retain an experienced medical malpractice lawyer as soon as possible so that you can achieve the best possible outcome for your case.

Why choose Morris James to represent you?

The lawyers of Morris James have been fighting for victims of negligence in Delaware since we opened our doors in 1932. We deal with lawyers and insurance companies so that you can focus on healing. Our medical malpractice attorneys, who represented healthcare providers for many years in medical malpractice cases, know the strategies used to defend healthcare providers and how to combat them. We will fiercely advocate for our clients, going to trial when necessary, to obtain the financial compensation that you need to regain stability and security after your injury.

If you or a loved one has suffered an injury due to a mistake by a healthcare professional, we may be able to help. Our attorneys at Morris James are available to talk to you about your rights and the options that you have at this difficult time. Contact us online or call 302.888.6857 to find out more.

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