Misdiagnosis and Failure to Diagnose

It is a doctor’s job to make reasonable and accurate medical diagnoses based on the standards of patient care in the industry. Although the medical industry does not require physicians to be right 100% of the time, it does require them to uphold certain standards during patient diagnoses. If a physician falls short of the expected standards of care, it could lead to a preventable misdiagnosis or failure to diagnose – two forms of medical malpractice that could cause serious patient harm. The physician may then be liable for the patient’s related injuries, damages or death.

When Are Diagnosis Mistakes Malpractice?

Just because a physician misdiagnosed or failed to diagnose your condition does not mean you are a victim of medical malpractice. For a diagnosis error to fulfill the definition of malpractice, the physician must have breached a duty of care to you in a way that a reasonable and prudent physician would not have under the same circumstances. You or a lawyer will need to prove the existence of four main elements to have a malpractice case in Texas.

1. You and the physician had a doctor-patient relationship at the time of the alleged diagnosis mistake, giving the physician a duty of care to you. A physician’s duties of care include the responsibility to make accurate diagnoses.
2. Your doctor breached the duty of care to you by negligently failing to correctly diagnose the condition or failing to do so within a reasonable time. If the misdiagnosis occurred under prudent care, the doctor may not be liable.
3. Your injuries or damages would not have occurred but for the mistake of the physician while diagnosing the condition. If you have a terminal type of cancer and would have suffered the same harm with an accurate diagnosis, for example, the doctor may not be liable.
4. You suffered compensable damages because of the misdiagnosis or failure to diagnose. Damages can include medical bills, lost wages, pain and suffering, or a worsened prognosis for recovery.

The medical industry standard of care during patient diagnosis includes listening to the patient’s complaints, asking about symptoms, making a list of possible diagnoses, referring the patient to a specialist (if necessary) and conducting the appropriate tests to narrow down the list of possibilities. A physician should use the process of eliminations to identify the injury, illness or condition most likely to be what is ailing the patient based on the facts at hand and test results. Any breach of this standard of care, resulting in misdiagnosis or failure to diagnose, is medical malpractice.

How to Prove Malpractice

A judge or jury in Texas will need to agree, based on a preponderance of evidence, that the physician in question breached his or her duties of care to you during diagnosis, causing your damages. This evidence often comes in the form of medical expert testimony. Texas law (Civil Practice and Remedies Code section 74.351) requires you to serve an expert report on the defendant within 120 days of filing your medical malpractice lawsuit. This report must state that the physician named as the defendant failed to meet the applicable standard of care during your diagnosis and that this is what caused your injuries. It must contain the signature of a qualified expert in the medical field.

You must file your malpractice lawsuit within two years of the alleged diagnosis error or your discovery of that error in Texas. You can wait no longer than 10 years maximum after the date of the negligent misdiagnosis to file your claim, regardless of the date of discovery. Work with an attorney to hire medical experts and submit your required expert report by the deadline. A medical malpractice attorney can file your initial claim and help you gather available evidence of misdiagnosis or failure to diagnose, such as medical records or testimony from experts, to help win your case. A successful malpractice lawsuit in Texas could end in compensation for your related economic and noneconomic damages, including the loss of a loved one.

Call us today to speak with a Houston personal injury lawyer.