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Misdiagnosis Lawsuits & Failure to Diagnose

About 33% of all filed malpractice claims from 2013 to 2017 were related to missed or delayed diagnosis. An incorrect or late diagnosis could result in unnecessary treatments or a patient not receiving proper treatment soon enough.

What’s the Difference?

Although they sound similar, misdiagnosis and failure to diagnose are different. Both may be grounds for a medical malpractice claim or lawsuit.

What Is a Misdiagnosis?

Misdiagnosis occurs when a patient with one medical condition is diagnosed with another disorder that they do not have. As a result, patients receive treatment that they do not need, resulting in additional or worsened medical issues in the future.

Example of a Misdiagnosis

An emergency room patient complains about chest pains. The doctor incorrectly diagnoses heartburn when it is really a heart attack. Instead of acting quickly to minimize damage to the patient’s heart muscle, the doctor recommends antacids and a visit to a gastrointestinal doctor.

What Is a Failure to Diagnose?

Failure to diagnose occurs when a medical professional does not diagnose or takes too long to make an accurate diagnosis. The consequence of failure to diagnose malpractice is a patient failing to receive proper or even life-saving treatment.

Example of Failure to Diagnose

A patient expresses concern about chronic abdominal pain. The doctor fails to order tests. In the absence of diagnostic testing, the patient is later diagnosed with cancer that could have responded to treatment.

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Common Reasons for a Misdiagnosis or Delayed Diagnosis

A misdiagnosis or delayed diagnosis can happen when a physician fails to:

  • Recognize clinical signs and symptoms
  • Order diagnostic tests
  • Obtain the patient’s complete health history, including risk factors due to age or genetics
  • Refer patient to a specialist or peer for a second opinion
  • Misinterprets test or lab results
  • Take the patient’s health complaints seriously

A patient can receive an incorrect or delayed diagnosis if the practitioner is impaired by drugs or alcohol or is too busy to spend appropriate time.

Commonly Misdiagnosed Medical Conditions

Pain that feels like heartburn could be a sign of a heart attack. It might also be the result of overeating or eating spicy food.

Symptoms alone might not be enough for a doctor to reach an accurate diagnosis. That is why physicians, specialists, and other medical professionals should act with due diligence to avoid misdiagnosis or a delayed diagnosis.

According to Prevention magazine, the five most commonly misdiagnosed health conditions are:

Sleep Apnea Misdiagnosed with Depression

Sleep apnea symptoms – a sleep disorder that interrupts breathing – are similar to depression. Both conditions involve disturbed or lack of sleep, lack of energy, sadness, or hopelessness.

Celiac Disease Confused with IBS

The symptoms for celiac disease – a digestive disorder triggered by a reaction to gluten – mimic those of IBS or Irritable Bowel Syndrome. The National Foundation for Celiac Awareness estimates that over 80% of Americans with celiac receive an incorrect or delayed diagnosis.

Lyme Disease and Multiple Sclerosis

Doctors often diagnose patients with multiple sclerosis rather than the accurate Lyme disease diagnosis. MS is a progressive disorder in which patients benefit from early treatment, so a delayed or incorrect diagnosis is particularly harmful.

Rheumatoid Arthritis Mistaken for Fibromyalgia

Fibromyalgia is a chronic disease characterized by whole-body pain, including painful, swollen joints. Patients with this disease are often misdiagnosed with rheumatoid arthritis.

Strokes and Migraines

Doctors who only consider a migraine’s common symptoms – limb numbness, difficulty speaking, and blurred vision – fail to accurately diagnose a stroke. Each moment for a misdiagnosed stroke victim has life-threatening consequences.

When a Misdiagnosis or Delayed Diagnosis Is Malpractice

Because many conditions have similar symptoms and even the most thorough doctor can make a mistake, not all misdiagnosis or delayed diagnosis is malpractice.

Medical malpractice is a legal term describing an act or omission by a medical professional that deviates from the accepted medical standard practice.

The National Institutes of Health describes “the four Ds” for acts or omissions defined as medical malpractice:

  • Duty of care owed to patients based upon accepted standards of care.
  • Dereliction of this duty of care in some manner, either through recklessness, negligence, or omission.
  • Direct cause resulting in injury, illness, or death to the patient.
  • Damages are the economic and non-economic losses suffered by the patient – or their loved ones – due to their injury, illness, or death.
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Can You Sue a Doctor for Misdiagnosis?

When a doctor fails to diagnose a condition that someone with the same or similar education and background would identify under similar circumstances, you can sue for medical malpractice.

Medical malpractice cases involving misdiagnosis or failure to diagnose are complex. As the plaintiff (the injured party), you must show liability or wrongdoing. However, an experienced misdiagnosis malpractice lawyer can collect evidence, documentation, and testimony to help you recover the compensation you deserve.


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If you’re looking for a law firm, where you’re not just another client. I can say from personal experience, you have found the right place at The Kemmy Law Firm. Everyone there always treated us amazingly. Not at any time were we in the dark, not knowing what was going on. Either Tom, Nick or Melissa would give us updates often on the case and explain to us the next steps. Which this made us feel like we were the only case they had. They fought for us as if they were fighting for their own family. They were compassionate about making sure we were going to be all right during the case as well as the years after the case. We are so thankful we found the Kemmy Law Firm and you will be too. Thank you Tom, Nick, and Melissa and everyone at The Kemmy Law Firm.

  Stacey Mitchell   |   07.19.2019   |   See All Reviews

Compensation for Misdiagnosis or Failure to Diagnose

If a medical error or negligence caused you or a loved one to become ill or injured (or if it worsened an existing medical condition), you could recover compensation.

A medical malpractice lawyer helps you seek financial recovery for damages such as:

  • Medical care and treatment – both current and future
  • Lifecare or long-term care
  • Prescriptions and medical devices
  • Lost pay
  • Reduced earning capacity
  • Pain and suffering
  • Diminished quality and enjoyment of life
  • Loss of consortium
  • Wrongful death
  • Benefits of a Medical Misdiagnosis Lawyer

    A medical misdiagnosis attorney with the Kemmy Law Firm can hold a negligent doctor accountable. With over five decades of combined legal experience, we have the knowledge and resources to obtain the best possible outcome.

    Our personal injury legal team can:

    • Collect medical records, test results, and other evidence of medical treatment
    • Review previous malpractice claims or complaints
    • Secure expert testimony
    • Interview witnesses

    We have recovered substantial settlements and verdicts for other medical malpractice victims. Let us help you when a negligent doctor causes you or a loved one to suffer.

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New Mexico Oil Field Worker Suffers Back Injury

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18-Wheeler Parks on Side of Road and Causes Catastrophic Injury

We recovered a confidential 7 figure settlement (in the millions) for a West Texas family man.

Child Suffers Closed Head Injury at Amusement Park

The Kemmy lawyers secured a $2.3 Million settlement.

Permanent Brain Injury

The Kemmy firm secured an $8 Million settlement on behalf of a client who suffered a brain injury when basic safety rules were violated.


Call Today for a Free Consultation

Sometimes the best way to hold a negligent doctor accountable is with a misdiagnosis or failure to diagnose lawsuit.

Call the Kemmy Law Firm at 575-222-8549 or reach out online to schedule a free, no-risk consultation. You pay nothing up front, and we are paid only when you recover compensation.

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  • Avatar R N ★★★★★ 2 months ago
    Nick was very easy to deal with. Very professional and understood the case very well. I hope to not have to work with him again (because not wanting another injury), but, if I do, I will work with again. Thanks for everything!
  • Avatar Manuel Arteaga ★★★★★ 2 months ago
    We were looking for someone to takeour case and We were unresponsive from some layers, either from well recogniced firms and I'm so grateful for that because since the first day that we spoke with Nick we knew that we will be well … More represented. He was very honest, clear, diligent and communicative thru the process. His work ethics are first class. I put him as a role model for my kids to know How a Profesional Person should be. Words are less of how greatfull we are to count with Him to represent us. Thank you Nick and your Team. Many Blessings!
  • Avatar Cynthia Garza ★★★★★ 9 months ago
    This law firm is professional , diligent and cares about their client. They were
    able to settle our suit at the first round of mediation. We were well informed about the process and knew what to expect.. The staff kept us informed and responded
    … More in a timely fashion to all correspondence .
  • Avatar Stuart Kunkel ★★★★★ 10 months ago
    I should have called Kemmy Law Firm, P.C. first
    For six months I have been dealing with an insurance company that would not reimburse me for a rental car I paid for out of pocket.
    I spoke to 10 different attorneys and nobody could help
    … More me.
    Then I called the Kemmy Law Firm, P.C. during a 15 minute phone call I got a Professional, Direct, Legal consultation that set me on the right course to handle my situation.
    The Kemmy Law Firm, P.C. is Polite, Respectful, and Sincerely Care about You enough to explain the legality of the Law with patience.
  • Avatar Jerry Guillen ★★★★★ 10 months ago
    Tom Kemmy helped me with a case about 20 years ago involving an insurance claim I had issues with and we were able to get the insurance to pay their part. I was very satisfied with Tom’s service. Also throughout the years since Tom has … More referred me and guided me in the right direction for legal questions. He is certainly a great person also because I personally know of him helping a grieving family that suffered the loss of 2 family members and he helped them gracefully. Thanks Tom for all you do.

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When you work with us at Kemmy Law Firm, you are working with a family run firm with more than 50 years of combined experience. We are dedicated and successful trial attorneys practicing in West TX, Hobbs, NM, Midland-Odessa, and across the Permian Basin. Our team handles everything from catastrophic injury claims to complex business matters. We are here to fight for you. We dedicate our time and attention to your case and use every resource available to maximize your claim and obtain the best possible outcome.