Failure To Diagnose

Many diseases and illnesses are progressive and require prompt treatment in order for the patient to have a chance at overcoming the disease. Progressive diseases such as cancer can often be treated successfully, if caught early enough. If a patient is not properly diagnosed, waiting to be treated can drastically limit treatment options. At Caesar & Napoli, our personal injury attorneys represent people who have suffered injuries or illnesses as the result of a medical professional failing to diagnose a disease or illness.

Missed Diagnoses Can Trigger Malpractice Claims

The medical malpractice attorneys at Caesar & Napoli, have handled a broad range of cases throughout Brooklyn, Queens and Manhattan, involving:

• Failure to diagnose cancer
• Failure to diagnose heart attack
• Failure to diagnose brain aneurysm
• Failure to diagnose stroke

In many instances, failure to diagnose situations happens in emergency rooms where patients are constantly moving in and out. Failure to diagnose can occur because a doctor fails to recognize the signs of a disease, fails to order proper testing or fails to monitor a patient. Our New York failure to diagnose lawyers know both the medical and legal sides to these claims. We can work with expert medical professional in the investigation process, and will invest in the necessary resources to help prove your case. We are on your side and will use our experience and knowledge to your benefit.

Missed, Delayed And Incorrect Diagnoses

Three different failures get grouped under the same heading, and they play out differently in a claim.

• A missed diagnosis means the condition was never identified, and the patient was sent home or treated for nothing at all.
• A delayed diagnosis means the condition was eventually found, but after a window in which treatment would have been more effective.
• An incorrect diagnosis means the patient was treated for a condition they did not have, which can cause harm on its own while the real problem advances.

In each situation the legal question is the same. Did the care fall below the accepted standard, and did that failure change what happened to the patient?

Conditions That Are Missed Most Often

Beyond cancer, heart attack, aneurysm and stroke, the claims that come to us regularly involve:

• Sepsis and other serious infections
• Pulmonary embolism and deep vein thrombosis
• Meningitis
• Appendicitis and other abdominal emergencies
• Spinal epidural abscess and cauda equina syndrome
• Ectopic pregnancy
• Diabetic complications, including undetected infection in the feet and legs
• Testicular and ovarian torsion

Several of these share a pattern. The patient presents with symptoms that overlap with something benign, a test that would have settled the question is not ordered, and the patient is discharged with instructions to follow up. Our pages on emergency room errors and misdiagnosis address related situations.

What Has To Be Proved

A failure to diagnose claim rests on two separate showings, and both are required.

The first is a departure from the accepted standard of care. That is not established by a bad result. It requires a qualified physician in the same field to review the records and explain what a reasonably careful practitioner would have done with the same presentation, and where the treatment fell short.

The second is causation. The delay has to have made a difference. New York does not require a plaintiff to prove that the malpractice was the only cause of the outcome. It is enough to show that the failure deprived the patient of a substantial possibility of a better result, which matters a great deal in cancer cases where the disease was present either way.

New York also requires that an attorney filing a medical malpractice action certify, under CPLR 3012-a, that a qualified physician has been consulted and that the claim has a reasonable basis. That review happens before anything is filed, which is one reason these cases take time to evaluate.

The Records That Matter

• Every visit note from the period when symptoms were reported, including the complaints recorded at triage
• Imaging studies and, just as importantly, the radiologist’s reports and any addenda
• Laboratory and pathology results, along with proof of when they were reviewed and who saw them
• Discharge instructions and any referral that was recommended
• Records showing whether an abnormal result was ever communicated to the patient
• Records from the later provider who finally made the diagnosis

Results that were produced but never acted on are a recurring theme in these claims. An abnormal finding sitting in a chart nobody opened looks very different from a finding that was never generated at all.

Deadlines In New York Failure To Diagnose Cases

• Medical malpractice generally: two years and six months from the act complained of, or from the end of continuous treatment for the same condition (CPLR 214-a)
• Failure to diagnose cancer or a malignant tumor: two years and six months from when the patient knew or reasonably should have known of the injury, subject to an outside limit of seven years from the act (CPLR 214-a, as amended in 2018)
• A foreign object left in the body: one year from discovery
• Wrongful death: two years from the date of death (EPTL 5-4.1)
• Claims on behalf of a child: tolled under CPLR 208, with a ten year outside limit in medical malpractice cases
• Treatment at a public hospital or a municipal facility: a notice of claim within 90 days and suit within one year and 90 days (General Municipal Law 50-e and 50-i)

The 90 day rule catches people out. A great deal of care in New York City is delivered at public hospitals, and the deadline there is measured in weeks rather than years.

Questions About Failure To Diagnose Claims

My diagnosis was late, but I am recovering. Is there still a claim?

Possibly. The question is whether the delay changed the treatment required or the prognosis. A patient who needed chemotherapy and surgery for a cancer that would have been handled with surgery alone has suffered a real and compensable harm even with a good outcome.

How do I know whether the delay actually mattered?

That is what the physician review answers. Records are collected, the timeline is reconstructed, and a specialist evaluates what the stage or the condition would have been at the earlier point. It is not something that can be judged from a description over the phone.

Does a second opinion that disagreed help the case?

It can help establish when the problem should have been recognized, particularly if the second provider reached the diagnosis from the same information the first one had.

Will I have to sue my doctor personally?

A claim names the providers and the institutions responsible for the care. In practice these matters are defended and paid by malpractice insurers, not out of a physician’s pocket.

Do you handle these cases outside Manhattan?

Yes, and one point is worth flagging. Care delivered at a public hospital carries the 90 day notice of claim requirement described above, and public hospitals operate across all five boroughs. Where the treatment happened can change the deadline, so it is worth confirming at the outset.

What does a case review cost?

Nothing. The initial consultation is free, and these cases are handled on a contingency fee basis. Prior results do not guarantee a similar outcome.

Related Medical Malpractice Pages

• Misdiagnosis
• Emergency room errors
• Surgical errors
• Medication errors
• Bedsores
• Medical malpractice
• Wrongful death

Talk To A Knowledgeable Medical Malpractice Lawyer

At Caesar & Napoli, we do not charge for initial consultations. To schedule a meeting with one of our attorneys to discuss your injury case, please contact us at (888) 235-6766. Most personal injury cases are handled on a no-win, no-fee basis. We are not paid attorney’s fees unless we win a recovery for your case.