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If you go to the doctor presenting with some sort of medical problem, you expect the doctor to provide some answers. Yet many people are often sent home with a proverbial “clean bill of health” even when they know something is wrong. Only later is a problem identified–often by another doctor–and by then the person’s condition may have significantly worsened. Missed diagnosis is a common problem in the medical field, but is it malpractice? That question does not have a simple “yes or no” answer. It depends on several factors. It also requires delving into the standards that govern New York medical malpractice law.

Read on to learn when a missed diagnosis is considered negligent. And if you believe that you or a loved one have a case, remember to contact our team of New York City attorneys for a free no-obligation consultation.

When Is a Missed Diagnosis Considered “Negligent”?

First, let’s establish what we mean by “medical malpractice.” Everyone has made a mistake at work. This is true of doctors and other health care professionals such as nurses. And not every mistake meets the legal definition of malpractice.

Medical malpractice refers to negligent conduct that harms a patient in some tangible way. Negligence, in turn, refers to a situation where one person owed some duty to care for another and failed to do so. To give a non-medical example, when you are driving your car on the road, you owe a duty of care to the other people on the road to obey traffic laws and operate your vehicle within the normally accepted standards for driving. If you are speeding or reckless and cause an accident, you are negligent and can be held legally responsible for any injuries that you caused.

In a similar vein, a doctor or medical professional is negligent when they fail in their duty of care to render services within the accepted standards of their profession. This standard can vary depending on the provider’s position and specialty. For example, the standard of care for a trauma surgeon is different from that of a geriatrics nurse. But all medical professionals are required to follow some standard of care.

Concerning a missed diagnosis–or “failure to diagnose,” as it is also called–malpractice usually occurs when a health care provider fails to follow the established procedures for their specialty. This leads to the provider failing to recognize that a patient has a particular medical condition despite presenting with the symptoms or signs commonly associated with that condition.

A simple example of this would be a doctor failing to take a proper medical history or not conducting a physical before concluding that the patient is “fine” and can go home. This can occur because a doctor is busy or rushed–think about people seeking treatment in a busy emergency room–and is discharging patients too quickly. Some doctors may also simply be dismissive of a patient’s complaints and symptoms, mistakenly believing they are faking a condition. There is also a tendency for some medical professionals to be especially dismissive towards women and non-White patients. And even in cases where a person seeks a “second opinion,” subsequent health care providers may consider the original doctor’s failure to diagnose as more authoritative than the patient’s ongoing complaints.

In other cases, a doctor may take a patient’s complaint seriously and order appropriate tests, but then there is little or no follow-up. A test may reveal the patient has a specific condition requiring treatment, but for some reason, the doctor never communicates that to the patient. Even worse, they may simply not recognize what the tests are showing.

The testing itself may also be faulty. Keep in mind, medical malpractice is not limited to doctors. Anyone involved in the provision of health care services is required to follow professional standards. So if a diagnostic technician misreads an X-ray or fails to communicate certain critical information to your doctor, that can lead to a missed diagnosis as well.

The Elements of a Malpractice Case Based on a Failure to Diagnose

As we noted at the outset, everyone makes mistakes in their jobs. To establish medical malpractice based on a missed diagnosis or failure to diagnose, it is not enough to show that your healthcare provider simply made a mistake. New York law requires that you prove all of the following:

• You had an established doctor-patient relationship with the health care provider who failed to diagnose you correctly.
• The failure to diagnose fell below the minimum acceptable standard of care for doctors in their specialty or field.
• The missed diagnosis made your condition worse or caused you some other injury.
• You suffered a financial loss (i.e., damages) as a result.

In many failure to diagnose cases, it is necessary for you and your medical malpractice attorney to work with one or more expert witnesses who can establish the relevant standard of care and explain to a jury how your doctor’s misdiagnosis fell below that standard. Never assume that a missed diagnosis is “obvious” and everyone will just take your work for it.

New York Has a 30-Month Deadline to File Medical Malpractice Claims

One other thing to note is that if you do suspect that a missed diagnosis caused you harm, it is important to seek out legal advice as soon as possible. As with any type of personal injury case, New York has a statute of limitations–i.e., a deadline to file a negligence lawsuit against a defendant. Normally, the limitations period for such claims in New York is two-and-a-half years (30 months) from the date of the “medical error.”

This deadline can get tricky in failure to diagnose cases since the patient often does not learn about the error until they later receive a correct diagnosis–or their condition has worsened to the point that emergency medical treatment is necessary. New York law does provide for suspending or “tolling” the limitations period to account for late discovery, but again, you must consult with an attorney who has experience in this area.

Remember, if you believe you have suffered harm because of your doctor’s failure to properly diagnose or treat your serious medical condition, do not delay in speaking with a qualified New York medical malpractice attorney. Contact our team at Silberstein, Awad & Miklos, P.C., to schedule a free no-obligation consultation.

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