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Can You Sue A Doctor For Failure To Diagnose?

A doctor’s failure to diagnose correctly can lead to severe complications or permanent damage to the patient. In these situations, it is sometimes possible to sue the doctor, depending on the conditions and negligence.

Recent Example: Former NFL Player Chris Maragos

The former Eagles captain and special teams ace suffered a torn posterior cruciate ligament during the team’s 2017 Super Bowl season. According to Maragos’ lawsuit, doctors ignored additional damage to his knee, which led to his NFL career being cut short.

The doctors for former NFL player Chris Maragos have been ordered to pay $43.5 million after a Philadelphia jury found they showed “medical negligence” in treating a knee injury that ended his pro career.

Watch Our YouTube Video With Joe and Dr. Malone About This Case and Topic >

What Exactly Is Medical Negligence?

An act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care.

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 their 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 damage because of the misdiagnosis.

The Four Factors in Action

When the doctor or hospital violates the standards of care and breaches the duty of care owed, it is possible to use these four factors against the medical facility and the physician.

The breach is the first important step, and then the injured party can connect the breach to the damage caused. The diagnosis was faulty originally, which led to the patient seeking a second opinion later. But, by the time this occurred, the injury had already occurred because of the late diagnosis. Sometimes, this leads to internal damage or problems because of medication.

The breach resulted in the injury, which was caused by a delayed diagnosis or the use of the incorrect medication. The damages are understood in these cases and applied in the courtroom.

One of the duties of a personal injury lawyer is to calculate the damages incurred by these injuries. When these factors are known and calculated properly, the lawyer can pursue the case for compensation and even enter into negotiations with the other party. The hospital or doctor may attempt to settle the case early and with a low number. This is why a board-certified civil trial lawyer, like Joe Zarzaur, is necessary to negotiate the proper range of compensation.

Future Lost Wages: Florida law requires that lost future earnings be measured by a plaintiff’s diminished ability to earn an income in the future, not the plaintiff’s actual loss of future earnings, and be directly related to the plaintiff’s injuries. They must also be supported by evidence, enabling them to be reasonably calculated.

Lost future earnings cover the income that the victim was likely to earn in the future. It is often calculated in current dollars, so inflation and cost-of-living increases are not included. This is because any future earnings will be awarded in the verdict or settlement.

How Can You Prove Lost Earning Capacity?

Proving lost future earnings is difficult because they are more conjectural. However, victims can prove what they were reasonably likely to earn in the future with records of past income, testimony, and expert testimony.

As you can see, bringing a case against a doctor for failure to diagnose or misdiagnosis can be very complex, which is why it is important to hire an attorney with experience in litigating medical malpractice cases


Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you’ve been injured due the carelessness of another, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board-Certified Trial Lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe, or by requesting a FREE case review through our website.