Medical Malpractice

Can You Sue for Misdiagnosis in New York?

July 17, 2023

Table Of Contents


Medical malpractice can happen in many ways. But one of the most common forms is misdiagnosis malpractice. A misdiagnosis can have serious or even fatal consequences. When you do not know the exact ailment you are suffering from, you cannot obtain the proper treatment. Even a delayed diagnosis can take months or years off your life.

A New York medical misdiagnosis lawyer has experience with the complexities involved in proving misdiagnosis claims. By getting financial compensation for injured patients, our attorneys help them obtain the treatment they should have received previously and compensate them and their families for their losses.

What Is Medical Misdiagnosis?

Medical misdiagnosis happens when medical professionals incorrectly diagnose a patient's health conditions. This could include any incorrect fact about your health that prevents you from receiving effective treatment for your condition.

In some situations, this means you received the wrong treatment. In others, you may have received no treatment. But in any case, your misdiagnosis meant that you lost the opportunity to treat your condition early. As a result, you suffered for longer than you needed to. The diagnosis error may even have shortened your life.

Common Forms of Medical Misdiagnosis

Diagnostic errors occur for several reasons. For instance, sometimes, a doctor fails to provide the correct diagnosis because they misread test results. In other cases, a laboratory or clerical error provides a false reading. No matter the culprit, these errors lead to several common forms of medical misdiagnosis.

One is delayed diagnosis. In these instances, a doctor could fail to recognize symptoms and give you a clean bill of health as a result — even though you are ill. This false negative that you receive allows your condition to go untreated until your doctor eventually provides you with the correct diagnosis. In turn, you lose the ability to begin treating your condition early.

If you are simply never given the proper diagnosis, this situation can lead to another form of diagnostic error: a general failure to diagnose. A failure to diagnose happens for the same reasons a delayed diagnosis happens.

There is one key difference between the two, though, which is that a non-diagnosis is often fatal. That occurs when a doctor misses the correct diagnosis and no one finds out about the mistake until the patient dies.

You can also receive a wrong diagnosis. In these situations, a doctor provides you with a positive diagnosis but for the wrong condition. In other cases, you might receive a false positive, indicating that you are ill with a particular condition when you are in fact healthy. This can be very damaging. For instance, unnecessary chemotherapy can cause severe adverse health effects.

can you sue a doctor for misdiagnosis

What Conditions Are Commonly Missed?

Medicine often requires judgment calls, and any error in interpreting symptoms can lead to a misdiagnosis or a failure to diagnose. Doctors can misdiagnose almost any condition.

When a doctor misdiagnoses a broken ankle as a sprain, the consequences are serious but not life-threatening. But a cancer misdiagnosis can have fatal results. Some of the most consequential conditions that doctors miss include:

Proper diagnosis of these conditions requires that testing labs, imaging labs, and doctors all work together. A breakdown with any of them can lead to a diagnosis mistake.

How to Prove a Misdiagnosis: Key Elements for Validating a Medical Misdiagnosis Claim

Not every misdiagnosis will support a medical misdiagnosis claim. To prove misdiagnosis cases, you must have evidence that meets the four elements of negligence, including:

Duty of Care

To prove negligence, you must show that the other person owed you a duty of care. In the case of a medical misdiagnosis, this means that the doctor-patient relationship existed. You and the doctor form this relationship when you seek medical advice and treatment from the doctor, who accepts you as a patient.

Breach of Duty

This standard of care is often called the professional standard of medical care and requires doctors and other healthcare providers to treat patients with the same care that a reasonably prudent medical professional would provide under the same circumstances.

The standard does not require doctors to be perfect. But it does mandate that they avoid any medical errors they know or should know to be harmful to patients. For misdiagnosis claims, the doctor must handle the process of diagnosing you with the same level of care and prudence that other doctors in the same situation would have used.


Causation means the diagnosis mistake was part of a sequence of events that resulted in an injury. If a doctor failed to diagnose a patient's breast cancer and they died after the consultation from a heart attack, the doctor's error was not the cause of the patient's death.


The diagnosis error must cause harm, such as delayed or incorrect treatment. But if your doctor quickly corrects the mistaken diagnosis and you are able to receive the proper treatment, you are unlikely to suffer any harm.

can you sue for misdiagnosis

Is Misdiagnosis Considered Medical Malpractice?

Yes. Medical malpractice is simply the term applied when a doctor commits professional negligence.

If a misdiagnosis of your medical condition happens due to negligence, you can file a medical malpractice claim against the doctor. It allows you to seek compensation for the losses you suffered due to the misdiagnosis or failure to diagnose.

Who Can Be Liable in NY Medical Misdiagnosis Case?

Any healthcare provider who played a role in your diagnostic error can be liable for medical negligence. Some examples include:

  • Doctors
  • Dentists
  • Nurses
  • Nursing assistants
  • Testing laboratories
  • Radiology laboratories
  • Medical records administrators
  • Hospitals

To determine who is liable for your medical malpractice claims, you need to look at who played a role in the diagnostic error.

For example, if your doctor correctly reads incorrect test results from a laboratory, you probably have a claim against the lab. You might also have a claim against the doctor if the doctor knew the lab was unreliable.

How Long Do You Have to Sue for Misdiagnosis?

New York's statute of limitations for medical malpractice is two-and-a-half years. But the start date of the statute of limitations can vary. The two-and-a-half-year period sometimes begins when the doctor commits medical malpractice. But if the misdiagnosis was not readily apparent, the period can also start when you discover the diagnostic error.

Thus, the statute of limitations for medical malpractice cases involving cancer misdiagnosis can vary. It starts when you first knew or should have known that you have cancer due to a diagnosis from another doctor or a worsening of your symptoms.

How Much Can I Sue for Misdiagnosis?

You can pursue two major types of damages in an injury claim: specific and general damages. Specific damages include expenses to get the correct diagnosis, lost wages, and diminished earning capacity due to disabling conditions. General damages are granted for any pain, anguish, disability, or disfigurement caused by the mistake.

You calculate specific damages by adding up the financial costs of the misdiagnosis. The amount of general damages comes from the severity and duration of your injury. Thus, the general damages for terminal illnesses are larger than for curable conditions.

How Common Is Misdiagnosis in NY?

A 2022 study estimated the diagnosis error rate to be about 6% in emergency room, primary, and inpatient hospital care. Across the U.S., over 7 million people receive an incorrect diagnosis every year in emergency rooms alone. Once you account for primary care and inpatient hospital care, this number amounts to tens of millions of patients each year.

Not all of these diagnostic errors result in an adverse event, with approximately one-third of diagnosis errors harming patients. But this means that hundreds of thousands of New York patients may have medical malpractice cases for diagnosis mistakes each year.

What Can You Do to Prevent Being Misdiagnosed?

To avoid a misdiagnosis, you must advocate for yourself. Insurance companies pay for the absolute minimum. This can cause doctors and hospitals to ration diagnostic testing. As a result, you must push them to order the tests and examinations you need to receive a full and correct diagnosis of your condition. Some steps you can take include:

  • Explaining your family medical history to doctors so they can look for hereditary illnesses
  • Listing all your symptoms, even if they seem unusual or embarrassing
  • Talking to your health insurer about the tests your insurance covers
  • Getting a second opinion if you think the first opinion might be wrong

This level of persistence might annoy your doctor and their staff, but it could also save your life.

New York Medical Malpractice Attorneys from Jacob D. Fuchsberg Law Firm Can Help You!

Diagnosis mistakes can cause unnecessary pain and suffering. They can also worsen your condition or even shorten your life due to a lack of proper treatment for your medical conditions. When a diagnosis mistake happens due to negligence, you may have a medical malpractice case.

The Jacob Fuchsberg Law Firm has experience fighting on behalf of misdiagnosed patients. Contact us online or by calling 212.869.3500 to schedule a free consultation with an experienced New York medical misdiagnosis attorney.