Failure to Treat Infections Part 2: Infections Arising from Failure to Identify after Hospital Stay or Doctor’s Visit

Failure to Treat Infections Part 2: Infections Arising from Failure to Identify after Hospital Stay or Doctor’s Visit

The unfortunate truth about many emergency rooms and even private doctor’s practices is that there is often a large volume of patients to examine, diagnose, and treat – leaving inadequate time that doctors have with each patient. The vast majority of doctors and other medical professionals perform due diligence on each case, testing for any medical problems they reasonably suspect a patient of having. 

Occasionally, though, due to overcrowding and other reasons, doctors commit a recognized form of medical malpractice called “failure to diagnose.” Failure to diagnose is similar to delayed diagnosis, incorrect diagnosis, and other forms of medical malpractice. 

What Proves a Failure to Diagnose?

As with all potential medical malpractice cases, proving that your health event was due to bonafide medical malpractice is a difficult bar to clear. Generally, successfully showing a failure to diagnose needs to include these two points:

  1. You would not have suffered from subsequent harm if the doctor and medical team you saw had diagnosed you correctly in the first place. 
  2. The medical professional who primarily treated you acted with negligence. Examples of negligence would be not ordering a urine test if you had pain while urinating; the results of the test would indicate whether or not your urine contained blood, indicating a urinary tract infection (which can cause serious complications if left untreated). 

Possible Defenses Against Failure to Diagnose

When a medical team is involved in your care, the doctor can sometimes shift blame around so that he or she is not individually responsible for a malpractice case. Related to the case itself, a possible defense in a failure to diagnose lawsuit could be that the doctor you saw would not be reasonably expected to diagnose you with the illness that caused you harm. A podiatrist, for instance, might not be keen enough to recognize symptoms of a brain tumor during a visit for foot pain. 

Another possible defense is that the illness or disease was rare enough that another doctor with similar experience and knowledge would not be likely to diagnose either. Many rare diseases require several visits to different specialists before a correct diagnosis is pinpointed. 


The average patient with a completely treatable illness, sickness, or other health issue should not have to go to multiple doctor’s offices to be diagnosed with something routine, like mononucleosis, a urinary tract infection, or a broken bone. If your health has been unnecessarily harmed due to a medical professional’s failure to diagnose, you might have a malpractice suit. Reach out to Mitch Feldman today for empathetic and aggressive legal representation.