Can You Sue a Doctor for the Wrong Diagnosis?
By FindLaw Staff | Legally reviewed by Garrett Monteagudo, Esq. | Last reviewed December 12, 2022
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Yes, you can sue when a doctor gets your illness or injury wrong. This is called "misdiagnosis." It's part of the legal field called medical malpractice.
The umbrella to this legal area is personal injury law. Personal injury cases are civil cases. They are not criminal cases. However, cases that were misdiagnosed on purpose or that result in death may have some criminal case elements.
What Is Misdiagnosis?
A misdiagnosis of your injury or sickness means the doctor guessed wrong or misread your test results. Their wrong diagnosis might:
- Make your medical condition worse
- Delay a correct diagnosis
- Result in more harm to you or death, which is referred to as "wrongful death"
Misdiagnosis cases can also apply if your doctor fails to give you any diagnosis at all. In other situations, the hospital or pharmacy could be at fault.
These all violate the "medical standard of care" that you should expect when working with a medical professional. It can be considered medical negligence that the doctor fails to help you.
In all cases, your misdiagnosis must have caused an injury or a loved one's death for you to be able to sue a doctor for wrong diagnosis.
With one in 20 patients misdiagnosed, doctors actually have a pretty good 95% success rate. However, a misdiagnosis could mean an illness goes untreated for too long. It could also mean that a patient must suffer through unnecessary treatments. Here are some commonly misdiagnosed illnesses:
- Asthma — Misdiagnosed as recurring bronchitis
- Heart Attack — Misdiagnosed as indigestion or a panic attack
- Lyme disease — Misdiagnosed as the flu, depression, or mononucleosis
- Parkinson's — Misdiagnosed as Alzheimer's, a stroke, or stress
- Lupus — Misdiagnosed as chronic fatigue syndrome, fibromyalgia, or rheumatoid arthritis
What Should I Do If I'm Worse After Seeing a Doctor?
If it's an emergency, then go to an emergency room or urgent care right away. Getting better is your first priority, and your attorney will advise you on how to proceed with the case. They should explain to you that you have a "duty" to:
- Follow your doctor's orders unless they are making you worse or you see no improvement
- Not wait around when you need additional care
- Not wait around until things are worse on purpose
- Not wait around because your doctor told you to
This is called "mitigating damages." In medical malpractice cases, the patient can be carefully reviewed just as much as the doctor can. They will want to make sure you're not committing fraud by making your illness or injury worse on purpose. If you need different care, then you need to get it right away.
In some cases, you can take your original injuries or illness to trial against a doctor. However, any new injuries that happened from waiting around may not be recoverable. Those new injuries would be your own responsibility.
Having an attorney by your side from the beginning is the best way to avoid more problems. It's the best way to build a strong case.
Can I Prevent Being Misdiagnosed?
A doctor getting your diagnosis wrong is unfortunate, but mistakes can happen. You can try to reduce the chances of a misdiagnosis by:
- Asking questions if you're not getting better
- Asking for a second opinion or asking your first doctor to review your results again
- Writing down directions, terms, notes, or anything you do not understand
- Asking for other possible diagnoses so you can switch treatment if needed
- Finding a highly reviewed doctor or asking for recommendations for a new doctor
- Making an appointment with a specialist
I Think I Have Been Misdiagnosed. Now What?
Medical malpractice cases that involve a misdiagnosis or delayed diagnosis are more common than you might think.
Only you know how you are feeling. If you're not getting better or something feels off, then you should trust your gut. You can return to the same doctor and explain the additional issues or symptoms. You could also see a new doctor for a second opinion.
The statute of limitations — the amount of time you have to bring a claim — for medical malpractice claims is generally two to six years. However, it varies on the state where you live.
Read the steps and topics below to be prepared for the process ahead of you, and to know when to get professional help for your situation.
I Want to Sue My Doctor. How Do I Start the Process?
Your first step should be a free consultation with a medical malpractice attorney to ask them if you have a case, and if you are within the time limit. Find a trusted law firm with an experienced medical malpractice lawyer. Leave your name and phone number, and give them a few details about your case. They should get back to you and offer some legal advice on pursuing the case or not pursuing it.
How Do You Prove Misdiagnosis?
To sue for negligence, you need to have four elements to the claim: duty, breach, causation, and damages:
- Duty: Did the doctor have a duty to care for you? Normally, when there is a doctor-patient relationship, the doctor has a duty to act as a reasonably competent doctor.
- Breach: Did the doctor breach the duty? Just because a doctor misdiagnosed an illness doesn't necessarily mean they were acting negligently. To show a breach of duty, you'd have to be able to prove that a different reasonably competent doctor would have been able to diagnose the illness properly.
- Causation: Did the doctor's misdiagnosis actually cause you harm? Your doctor may have misdiagnosed a loved one with cancer instead of the flu, but the next day someone ran them over and killed them. The doctor's misdiagnosis was not the cause of death.
- Damages: Did the misdiagnoses result in any measurable losses, which are referred to as damages? The doctor may have misdiagnosed you with migraines instead of the flu. However, the doctor prescribed you Tylenol, which helped cure your flu as well. This means you didn't suffer any damages because of the misdiagnosis.
Next, you may need to gather paperwork to show diagnostic errors or any medical errors that happened while you were at the hospital or attending doctor's appointments. These will:
- Support your claim in the future
- Prove you had a doctor-patient relationship
- Show evidence of your doctor's negligence
- Give your attorney a framework to build the case
Healthcare providers should give you your records when you ask. If it seems like they are resisting, you should tell your attorney.
You may eventually get second opinions on the medical care you received to help prove your doctor was wrong. This is called differential diagnosis and is used to show an incorrect diagnosis the first time around. Other doctors may also be used as expert witnesses if the case goes to court.
Should I Start a Medical Malpractice Case?
There can be many reasons why you are misdiagnosed. The doctor may have made a mistake, not listened to you, or you might have left out a key part of your medical history or symptoms. No matter the reason why it happened, getting better is what matters most. Not getting the answers you need can be life-threatening.
Get the medical attention you need, and then find an experienced attorney to explain whether you have a medical malpractice case. It's your right to have competent medical care, so suing your doctor (even if you really like them) might be the necessary course of action.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified medical malpractice attorney to make sure your rights are protected.