Overview:

• Failure to diagnose refers to a health professional or hospital failing to diagnose the patient’s condition or injury.
• Delayed diagnosis refers to a health professional or hospital failing to investigate the patient’s illness in a timely manner which has led to complications outside of the diagnosis itself.
• Examples of delayed diagnosis/misdiagnosis include failing to make a diagnosis generally, failing to detect early signs of illness, or failing to provide a referral for further testing or to a specialist.

As a patient, you rely on your medical practitioner or hospital service to diagnose you correctly and within a timely manner. Suppose your medical condition or illness has been misdiagnosed or you have suffered a delay in being diagnosed by an Australian health practitioner e.g. GP or Health service or a Hospital. In that case, you may be entitled to claim compensation if you have suffered an injury, loss, and damage as a result of that failure to diagnose or delay in diagnosis.

Failure to diagnose 

Failure to diagnose situations may involve the patient suffering from a condition or injury and attending a healthcare provider or hospital multiple times. However, the medical practitioner fails to diagnose the patient’s condition or injury. 

Another situation where a failure to diagnose may occur is in a trauma setting, where the patient attends a hospital with an injury (such as a fracture). If the hospital staff fail to organise appropriate tests and investigations (for example, an X-ray or CT scan) for the patient, they cannot properly diagnose the injury. In this situation, the patient may then be discharged without a diagnosis or treatment plan, causing further injury to the patient.

Delayed diagnosis

A delayed diagnosis can include failing to investigate certain illnesses such as cancer, sepsis, or infection, in a prompt manner. This can cause the patient to have a longer recovery time, reduced life expectancy, or a terminal outcome.

Usually, in these circumstances, had a diagnosis been made at the earliest opportunity, the patient could have been treated and received a much better clinical outcome.

Failure to diagnose/delayed diagnosis examples include: 

• Failure to make a diagnosis;
• Failure to detect injury on medical imaging e.g. x-ray or MRI;
• Failure to detect the early signs of illness e.g. cancer, heart attack, or stroke; or
• Failure to refer you for further testing or specialist opinion.

To bring a claim for misdiagnosis, delayed diagnosis, or failure to diagnose, you must be able to establish: 

1. The health provider did not exercise reasonable skill or care in making a diagnosis that would have been expected by a competent health professional in their position. This may include consideration of whether the medical practitioner has taken a detailed patient history or referred you to other health professionals for follow-up tests and investigations. For example, blood tests, scans or ultrasounds.
2. The misdiagnosis or failure to diagnose has caused a further injury that is over and above the condition already suffered. A claim will be unsuccessful if you are only suffering from the diagnosed illness or condition or if your additional symptoms have resolved.

What compensation may be awarded if you can establish you have suffered misdiagnosis, delayed diagnosis, or failure to diagnose? 

Compensation will never be able to restore an injured person to their pre-injury condition. However, it aims to compensate for the loss you have suffered, including economic and non-economic loss, treatment expenses, and care requirements.

For more information on the damages available in medical negligence claims, see our previous article here.

Compensation may include but is not limited to:

• Past and future medical expenses;
• Past and future loss of income;
• Care services both professional or family and friends; and
• Loss of enjoyment of life.

What do you do if you think you have suffered misdiagnosis or delayed diagnosis?

• Communicate your concerns to your medical practitioner or go to your local hospital;
• Ask questions about your diagnosis;
• Ask if any additional tests or investigations are needed for your illness or condition;  
• Ask if there are any other possible diagnoses that would explain your symptoms;
• Seek a second opinion from another health professional; or
• Make a formal complaint to the Office of the Health Ombudsman outlining your concerns.

Summary: 

You may be entitled to compensation if a health professional has failed to recognise your symptoms or condition and you are subsequently suffering an additional injury.