Discovering that a doctor gave you the wrong diagnosis can be confronting, particularly if the mistake delayed treatment or allowed your condition to become more serious. It is understandable to wonder whether the incorrect diagnosis means you have experienced medical negligence.
However, misdiagnosis and medical negligence are not the same thing.
Doctors sometimes reach an incorrect diagnosis despite taking reasonable steps based on the symptoms, test results and information available at the time. For a misdiagnosis to support a medical negligence claim in NSW, it is generally necessary to establish more than the fact that the original diagnosis was wrong.
The circumstances leading to the diagnosis, the standard of care provided and whether the error actually caused additional harm can all become important.
What Is a Misdiagnosis?
A misdiagnosis occurs when a medical condition is incorrectly identified. For example, symptoms caused by one condition might initially be attributed to another. Alternatively, a patient may be told there is no significant medical problem before later investigations reveal an underlying illness.
Misdiagnosis can occur in many areas of healthcare, including:
- cancer diagnosis
- fractures and musculoskeletal injuries
- infections
- cardiovascular conditions
- neurological disorders
- gastrointestinal conditions
- psychological conditions
Some conditions produce symptoms that overlap with several other illnesses. Others may be difficult to identify during their early stages.
For this reason, an incorrect diagnosis does not automatically mean the treating practitioner acted negligently.
When Can a Misdiagnosis Become Medical Negligence?
The key question is usually not simply “Was the diagnosis wrong?” Instead, the legal analysis considers whether the healthcare professional exercised the level of care and skill reasonably expected in the circumstances.
Professional negligence in NSW is governed in part by the Civil Liability Act 2002 (NSW). Section 5O deals with the standard applied to professionals and provides a framework concerning professional practice that was widely accepted by peer professional opinion as competent professional practice.
In a misdiagnosis case, questions may include whether the practitioner:
- took an appropriate medical history
- adequately considered the patient's symptoms
- performed an appropriate examination
- ordered investigations that were reasonably indicated
- properly considered test results
- followed up abnormal findings
- referred the patient to a specialist when appropriate
- reconsidered the diagnosis when symptoms persisted or changed
The assessment is based on the circumstances at the relevant time. It should not simply assume that because the correct diagnosis became obvious later, it should necessarily have been obvious during the earlier consultation.
What Is the Difference Between an Honest Diagnostic Error and Negligence?
Medicine involves professional judgement and uncertainty. Imagine a patient attends a GP with symptoms that commonly occur with a relatively minor condition. The doctor takes an appropriate history, conducts a reasonable examination and follows an accepted diagnostic approach. A rare underlying condition is subsequently discovered.
The original diagnosis may have been incorrect without the doctor's conduct necessarily falling below the required standard of care.
The circumstances may look different if there were clear warning signs of a serious condition but no appropriate investigation was undertaken, or if an abnormal test result was overlooked and the patient was incorrectly reassured.
The difference therefore lies less in whether an error occurred and more in how the healthcare professional reached the decision.
What About a Delayed Diagnosis?
Misdiagnosis and delayed diagnosis frequently overlap. A patient may initially receive an incorrect diagnosis and only learn the true cause of their symptoms months later. In other cases, no diagnosis is made despite repeated presentations.
A delay itself does not necessarily establish negligence. The question remains whether reasonable care at an earlier point should have led to further investigation, referral or diagnosis.
For example, persistent symptoms might reasonably require a different response after several consultations than they did during the first presentation.
Medical records can become particularly important because they show what symptoms were reported, what examinations were performed, which investigations were ordered and how the patient's condition developed over time.
Why Does Causation Matter?
Even where a diagnostic error resulted from negligent care, that does not necessarily mean compensation will be payable. A claimant generally also needs to establish causation.
Under section 5D of the Civil Liability Act 2002 (NSW), determining whether negligence caused particular harm involves questions of factual causation and the appropriate scope of liability.In practical terms, the issue may be: What difference did the misdiagnosis actually make?
Suppose a serious condition should have been identified three months earlier. Medical evidence may need to address whether earlier diagnosis would probably have resulted in a better outcome.
If the same treatment and outcome would have occurred regardless of the delay, establishing compensable loss may be difficult.
If the delay instead allowed the condition to progress, required more invasive treatment or materially reduced the prospects of recovery, the consequences may be very different.
What Evidence Is Important in a Misdiagnosis Claim?
Medical negligence claims involving diagnosis are usually evidence-heavy.
Relevant material may include:
- GP and specialist records
- hospital records
- pathology results
- diagnostic imaging
- referral letters
- prescription records
- records from subsequent treating practitioners
- correspondence between healthcare providers
- evidence of additional treatment or injury caused by the delay
The chronology is particularly important.
Records can help establish what the practitioner knew at each consultation and whether symptoms, test results or other warning signs should reasonably have prompted a different response.
Why Is Independent Medical Expert Evidence Important?
Determining whether another healthcare professional should have reached the correct diagnosis is generally not something that can be established simply from the patient's experience.
Independent medical expert evidence may be required. An appropriately qualified expert can examine the clinical records and consider whether the investigation, diagnosis and treatment were consistent with the standard reasonably expected from a practitioner in that field.
Expert evidence may also address causation. For example, an oncologist might be asked not only whether cancer should reasonably have been detected earlier, but also whether earlier detection would probably have changed the treatment required or the patient's medical outcome.
How Much Harm Must a Misdiagnosis Cause?
The practical significance of a diagnostic error varies considerably. An incorrect diagnosis that is corrected quickly without affecting treatment or recovery is very different from one that leads to significant additional harm.
Potential consequences might include:
- progression of an underlying disease
- unnecessary treatment
- avoidable surgery
- prolonged pain
- additional medical expenses
- extended time away from employment
- reduced earning capacity
- permanent impairment
The nature and extent of any compensation will depend on the individual circumstances and the loss that can legally be attributed to the negligent conduct.
How Can Law Advice Help With a Potential Misdiagnosis Claim?
Finding out that your original diagnosis was wrong does not, by itself, tell you whether medical negligence occurred. Answering that question may require a detailed review of what symptoms were presented, what information was available to the healthcare professionals involved, whether reasonable investigations were undertaken and whether an earlier correct diagnosis would have changed the outcome.
The medical negligence lawyers at Law Advice can obtain and review your medical records, identify potential issues in the treatment you received and arrange appropriate independent medical expert evidence where required. They can also assess whether the diagnostic error caused additional injury or financial loss and advise whether there are reasonable grounds to pursue compensation.
If you believe an incorrect or delayed diagnosis caused your condition to worsen, getting advice from an experienced medical negligence lawyer like Law Advice can help separate an unfortunate diagnostic outcome from a potential breach of the standard of care and determine whether the circumstances warrant further investigation.