Medical Malpractice in Diagnosis

Medical malpractice in diagnosis refers to situations where the treating physician or the medical staff fails to identify accurately or with the required speed the patient's medical condition, and consequently, a preventable damage is caused that could have been avoided through proper diagnosis and timely treatment. This form of negligence disrupts the critical early stages of treatment - where an accurate diagnosis can be the difference between recovery and irreversible damage.

Table of Contents:

• What is medical malpractice in diagnosis?
• In what situations does medical malpractice in diagnosis occur?
• Negligence in diagnosing severe illnesses and emergency situations
• Unique fields in negligent diagnosis
• Informed consent in the diagnostic procedure (failure to present alternatives and possible tests)
• Evidentiary aspects and compensation in the claim
• The doctrine of "loss of recovery chances" – what is it and when is it applied?
• The importance of the medical record and the consequence of "evidentiary damage" (when documentation is missing)
• Statute of limitations in diagnostic malpractice claims (when does the race begin?)
• Practical guide: Suspecting negligent diagnosis? Step-by-step
• From whom can compensation be claimed? (Physician, health fund, hospital)
• Collecting a full medical record (including digital logs and requests)
• The decisive importance of an expert medical opinion
• A complaint to the Ministry of Health vs. filing a civil lawsuit
• Medical Malpractice in Diagnosis - Frequently Asked Questions (FAQ)

What is medical malpractice in diagnosis?

Medical malpractice in diagnosis includes a variety of errors, such as misdiagnosing one condition instead of another, failing to refer for necessary tests, or ignoring suspicious signs in laboratory results. Malpractice in diagnosis does not necessarily require a complete failure to identify the disease - it also includes delays or partial diagnoses leading to complications, suffering, or wrongful death.

For example, misinterpreting the results of a mammogram test and ignoring or missing early signs of breast cancer may cause the disease to be discovered only at an advanced stage. Similarly, if a stroke victim is discharged from the emergency room without proper testing and later suffers permanent damage, this too could constitute malpractice in diagnosis.

The Legal Difference Between a Reasonable Error in Diagnosis and Negligence (The Reasonable Doctor Test)

Errors in medical treatment happen all the time, and it is not always medical malpractice. A medical error refers to an unintentional mistake made by a healthcare professional during diagnosis or treatment. Mistakes can occur as a result of human error and are an unavoidable part of life, even though doctors, nurses, and medical teams act with good intentions. Many mistakes made in medical treatment do not cause harm and remain just unfortunate but relatively insignificant errors.

Medical malpractice is defined as the failure of healthcare professionals to provide the accepted standard of care expected of them, where this failure directly causes damage or injury to the patient. To prove medical malpractice, four main things must be established:

1. Duty of Care: The existence of a duty of care toward the patient.
2. Breach of Duty (Negligence): The treatment the patient received fell below the standard expected of a reasonable doctor.
3. Causation: The failure in treatment caused the damage.
4. Damages: The patient suffered injury and/or substantial losses due to the negligent treatment or advice.

In what situations does medical malpractice in diagnosis occur?

Insufficient Investigation of Patient Complaints and Ignoring Repeated Complaints

Repeatedly ignoring patient complaints may constitute medical malpractice, especially when the doctor fails to refer the patient for an investigation despite their complaints. The doctor's disregard can lead to a significant and material delay in diagnosing a disease or cause a deterioration in the medical condition, and even irreversible damage.

One of the tools to prove medical malpractice in this case is the reasonable doctor test. That is, whether a reasonable doctor would have acted in the same way – whether ignoring the complaints constituted negligence or if the doctor acted as expected.

Failure to Perform Appropriate Tests or Failure to Refer to a Specialist

When a doctor fails to refer the patient to a specialist and ignores symptoms, fails to act based on vital test results or information, or misdiagnoses the patient's condition, this may be considered medical malpractice. To prove medical malpractice, it must be shown that the healthcare provider deviated from the reasonable standard of care.

Misinterpretation of Laboratory and Imaging Tests (X-ray, CT, MRI)

Technological advancements in medicine have led to the development and refinement of imaging tests – X-ray, CT, and MRI. These tests, along with laboratory analysis, help doctors diagnose and treat medical conditions accurately and on time. However, there are cases where, due to negligence in interpreting the results, an error is made in diagnosis and treatment. Sometimes it is a failure of the laboratory personnel or the staff of the institute that performed the test, and sometimes of the doctor themselves. Nonetheless, not every error will constitute medical malpractice, but only cases where it is proven that the damage was caused due to a failure to exercise a reasonable measure of caution or technical skill.

Follow-up Failures: Failure to Report Abnormal Results to the Patient

The encounter between a doctor and a patient has a clear protocol for diagnosing the latter's medical condition. Among other things, the protocol includes referrals for tests, whether as part of routine check-ups or following a specific complaint by the patient. The doctor is obligated to review the test results, and if abnormal results are received, the doctor must update the patient and establish an appropriate treatment plan accordingly. In cases where the doctor fails to do so, it can lead to a delay in receiving treatment, a worsening of the medical condition, and in extreme cases, death.

Overdiagnosis and Providing Unnecessary or Harmful Treatment

Patients often fear that their doctor missed a disease or a dangerous medical condition. However, patients should also be concerned about overdiagnosis. Doctors who overdiagnose medical problems end up providing invasive treatment that may cause unnecessary harm. These cases are underreported, and many victims are unaware that they might be entitled to compensation.

What exactly constitutes overdiagnosis? According to certain definitions, overdiagnosis involves informing a patient that they have a condition they simply do not suffer from. Other definitions include exaggerating a condition or its severity. According to other definitions, overdiagnosis occurs when a doctor treats a medical condition that would not have harmed the patient if left as it was.

The common denominator of all these definitions is that they resulted in unnecessary treatment. In some cases, the unnecessary treatment only added expenses, loss of time, discomfort, and wasted resources. In other situations, unnecessary treatment resulting from overdiagnosis can lead to far more severe consequences, including serious injuries.

Negligence in diagnosing severe illnesses and emergency situations

Emergency rooms are designed to provide rapid, life-saving care during some of the most critical moments of a person's life. When a person arrives at an emergency room, it is usually not by choice - it is out of necessity. The expectations are simple: to receive prompt, skilled treatment and to recover. However, in a chaotic environment where every second counts, mistakes can and do happen. When these mistakes stem from sub-standard care, they can constitute medical malpractice.

Emergency room malpractice occurs when the medical staff fails to provide care that meets the accepted standard, and this failure causes harm to the patient. These cases often differ from other forms of medical malpractice due to the fast-paced and high-pressure nature of the emergency room. Medical teams frequently treat patients without a complete medical history of severe illnesses, such as various types of cancer or autoimmune diseases and infections. The medical staff must make quick decisions under pressure. However, this context does not justify negligent care.

Negligence can manifest in various ways in the emergency room, such as ignoring signs indicating cardiovascular and cerebrovascular events (heart attacks, strokes, pulmonary embolism) or autoimmune diseases and infections. Thus, a patient arriving with chest pains might be discharged with a diagnosis of indigestion, only to suffer a heart heart attack hours later. A stroke victim may find themselves waiting too long for a medical evaluation, thereby missing the time window for effective treatment, and more. In each of these scenarios, the failure of the medical staff to act appropriately, considering the symptoms and standards of emergency medicine, can have critical consequences.

Delayed Diagnosis of Cancer Illnesses (And the Impact on Recovery Chances)

Medical malpractice in the delayed diagnosis of cancer is among the most common grounds for medical malpractice lawsuits in Israel. When a doctor or medical team fails to diagnose cancer at an early stage - and it was possible to do so - the patient's chances of recovery can drop significantly. Israeli law imposes a clear duty on doctors to act with the required professional standard and to perform all necessary tests for diagnosing severe illnesses like cancer.

Various factors can lead to a delayed diagnosis: failure to perform required tests, incorrect interpretation of medical findings, dismissing patient complaints or clinical signs, and a delay in referring to relevant specialists. When it is proven that the delay in diagnosis resulted from medical malpractice, the patient will be entitled to compensation for the damages caused to them.

To prove medical malpractice in a delayed cancer diagnosis, several conditions must be met simultaneously. The first condition is proof that the doctor deviated from the required professional standard (would a doctor under these circumstances have acted differently and performed the tests necessary for early detection of the disease?). The second condition is the existence of a direct causal link between the negligence and the damage caused (it must be shown that had the diagnosis been made on time, the medical outcome would have been better). The third condition is proving actual harm to the patient as a result of the delayed diagnosis.

Missing or Delayed Diagnosis of a Cardiac Event or Stroke in Emergency Rooms

In medical situations such as a cardiac event or a stroke, the speed of diagnosis and treatment is critical. If the medical staff misinterprets the signs – it can impair both the chances of recovery and the patient's ability to rehabilitate. In cases of a stroke (cerebrovascular event), the common symptoms are weakness in an arm or leg, speech difficulties, blurred vision, and loss of balance, and in cases of a cardiac event, symptoms include pressure or pain in the chest, and in women, shortness of breath, vomiting, cold sweat, extreme fatigue, abdominal pain, and more.

Medical malpractice in medical conditions such as these can manifest as an incorrect diagnosis, where the medical staff attributed the symptoms to another disease or medical condition. Malpractice can also manifest as a delay in performing tests to diagnose the medical condition, such as an ECG, CT, or MRI. In other cases, medical malpractice can manifest as a premature discharge from the hospital before the tests have been interpreted and life-threatening diagnoses have been ruled out.

Acute Infections and Sepsis

Sepsis is a severe medical condition that can cause life-threatening complications if not treated quickly and properly. When the medical staff fails to diagnose or treat sepsis, the consequences can be devastating.

The primary symptoms of sepsis are severe shortness of breath, very high fever, chills and muscle aches, skin discoloration, and low urine output. These are symptoms that can also match other medical conditions (such as the flu or a virus); therefore, there are cases where patients are discharged home with a misdiagnosis. If the medical condition is not diagnosed on time, the medical consequences are devastating and can lead to damage to internal organs (heart, kidneys, liver) and even death.

Medical malpractice in these cases can manifest when the doctor should have suspected sepsis based on the data before them, or when they failed to perform the correct tests on time, failed to administer antibiotics or fluids immediately, and more.

Unique fields in negligent diagnosis

Medical malpractice in diagnosis is characterized by a deviation from the accepted medical standard. When it comes to pregnancy and childbirth, a delayed diagnosis, misdiagnosis, or lack of diagnosis can lead to life-threatening situations and significant harm to both the mother and the baby.

Negligence in Diagnosis During Pregnancy (Infection Monitoring, Genetic Defects)

Medical malpractice in diagnosis during pregnancy can manifest as a failure to detect genetic defects, syndromes, or threatening infections. For example, when the treating physician or medical staff fails to refer the parents during pregnancy for genetic screening tests (such as Fragile X, Tay-Sachs, or cystic fibrosis) despite the parents' data and medical history indicating that they are at risk. Other cases of medical malpractice involve the incorrect interpretation of ultrasound examinations or other pregnancy tests (systems review, nuchal translucency, amniocentesis) from which one could have learned about defects or other medical conditions.

In addition, as part of pregnancy monitoring, doctors must track the woman's immune status and refer her continuously for required blood tests (for example, to detect rubella, listeria, or CMV). Failing to refer and monitor these tests can be considered medical malpractice.

Medical Malpractice in Dental Treatment Diagnosis

Medical malpractice in dental treatments during the diagnostic stage may occur when the dentist fails to identify a significant dental problem on time, misinterprets an X-ray or a clinical examination, ignores repeated complaints from the patient, or fails to refer for further investigation when required. In such cases, a delayed or incorrect diagnosis can lead to a worsening of the medical condition, tooth loss, damage to the jawbone, infections, prolonged pain, or the need for more complex and expensive treatments than those that would have been required had the problem been diagnosed on time. However, not every diagnostic error necessarily constitutes medical malpractice. To evaluate if a cause of action exists, it must be examined whether the dentist acted in accordance with the accepted professional standard, whether the problem could have been diagnosed earlier, and whether a causal link exists between the faulty diagnosis and the damage caused to the patient.

Negligence in Diagnosing Children and Infants

Medical malpractice in children occurs when a member of the medical staff (doctor, nurse, or hospital team) fails to meet the standard of care when treating a child. This negligence can cause damage, injury, or even death. Examples of medical malpractice include, among others, misdiagnosis, delayed diagnosis, medication errors, or medical malpractice in surgery, birth injuries, or failure to recognize and treat severe conditions.

Medical malpractice claims related to children often involve unique legal and medical considerations. Since children cannot represent themselves, a parent or legal guardian must file the claim on their behalf. Additionally, the long-term impact of an injury on the child's physical and cognitive development is a major factor in determining damages. These cases often require expert opinions to assess how the injury might affect the child's growth, education, and earning potential. Furthermore, the statute of limitations period is longer and begins counting from the moment the child reaches the age of 18.

Informed consent in the diagnostic procedure (failure to present alternatives and possible tests)

Lack of informed consent is one of the most common causes of action in the field of medical malpractice claims. The Patient Rights Law stipulates that no medical treatment shall be given to a patient unless they have given full consent after receiving all the necessary information for that purpose. The doctor must explain the test or investigation required for the diagnosis, present the alternatives and possible tests for the diagnosis – advantages and disadvantages of the various tests, as well as the risks and complications involved. In addition, the doctor (or medical staff) must detail the consequences and risks if the patient chooses not to perform the tests. If the patient did not give their informed consent, even if the diagnosis was performed flawlessly, they have a cause of action for a breach of autonomy.

Evidentiary aspects and compensation in the claim

For a medical malpractice claim to be accepted, it must be proven that a deviation from accepted practice occurred during the treatment or diagnosis and that damage was caused to the patient (mental, physical, financial). Beyond that, a causal link between the negligence and the damage must be proven, meaning that the damage was caused because of the negligent act – misdiagnosis or delayed diagnosis.

How do you prove a causal link between the delay in diagnosis and the damage?

To prove a causal link between the delay in diagnosis and the damage, it is necessary to consult a medical expert in the field to formulate a professional expert opinion based on the patient's condition and their medical record. In tort files, and in medical malpractice claims in particular, the expert's opinion is essential and critical to proving the causal link.

The doctrine of "loss of recovery chances" – what is it and when is it applied?

The doctrine of "loss of recovery chances" is a unique legal tool in the field of medical malpractice. This tool allows for compensating the patient when a delay in diagnosis led to a decrease in their chances of recovery as a result of the failure. Under this framework, the patient must prove that their chances of recovery were substantial and that but for the failure, they had a chance to get well. The compensation is probabilistic rather than full, and is calculated according to the rate of the chance that was lost. For example, if it is proven that the patient had a 20% chance of recovery, they will be awarded 20% of the full compensation amount they would have received had the damage been caused with certainty by the medical entity. In several rulings over the years, the Supreme Court adopted this doctrine and established various criteria for determining damages.

The importance of the medical record and the consequence of "evidentiary damage" (when documentation is missing)

One of the most important factors on which a malpractice claim relies is the medical record, which includes all tests, hospitalizations, medications, etc. The medical record is crucial for proving the damage caused to the patient as well as establishing the causal link, and the expert's opinion, which is also submitted within the claim, is based on it among other things. According to the law in Israel, every patient has the right to receive the full medical record regarding them. If a partial/incomplete record is received or if it is not received at all, the burden of proof shifts to the defendant. That is, unlike the civil procedure rules which stipulate that in a tort claim the plaintiff must prove negligence, damage, and the causal link, in cases where the medical institution failed to deliver, or partially delivered, the medical record, the burden of proof shifts to them, and they are required to prove that they were not negligent and did not cause damage.

What compensation can be received (the main heads of damage)?

Compensation in a medical malpractice claim is divided into two types: pecuniary damages and non-pecuniary damages.

Pecuniary damages – these are damages that can be practically quantified. For example, loss of wages and pension, medical and rehabilitation expenses (such as reimbursement for medical equipment, medications, treatments, hospitalizations, etc.), third-party assistance and nursing care, and travel and mobility expenses.

Non-pecuniary damages – these are damages that are difficult to quantify precisely, and therefore the court decides on the amount of compensation (unless it is a settlement procedure). This category includes damages under heads of damage such as pain and suffering (mental anguish, diminished quality of life resulting from the diagnostic error, etc.), shortened life expectancy (primarily relevant in delayed diagnosis of life-threatening diseases where recovery chances were harmed), and breach of autonomy (compensation in cases where the failure in diagnosis deprived the patient of the right of choice to refuse or accept treatment).

Statute of limitations in diagnostic malpractice claims (when does the race begin?)

In diagnostic malpractice claims, the running of the statute of limitations usually begins on the day the damage was discovered and not on the day of the test itself. As a general rule, the limitation period begins counting from the day the patient discovered (or reasonably should have discovered) the damage and its link to the diagnosis. From the day of discovery, 7 years are counted until the claim is time-barred. According to Section 89 of the Torts Ordinance, a lawsuit cannot be filed if more than 10 years have passed from the day the negligent event occurred. Meaning, if it became clear to a person that they were misdiagnosed and suffered damage, and more than 10 years have passed since the diagnosis was performed, they will not be able to file a claim. Therefore, in any case of suspicion, even the slightest, it is important to seek legal counsel as soon as possible.

In the case of minors, the limitation period begins at age 18. In the case of a person who was unable to take care of their affairs (due to a physical or mental limitation), the running of the statute of limitations may be suspended. Additionally, in cases where there was intentional concealment by the medical institution, the limitation period will begin on the day the concealment was discovered.

Practical guide: Suspecting negligent diagnosis? Step-by-step

If a suspicion of negligent diagnosis arises, it is recommended to contact a lawyer specializing in medical malpractice claims as soon as possible so that they can guide the patient on how to proceed in a way that serves their interests. Concurrently, to protect the patient's health, a second opinion should be sought from another specialist to consider an alternative treatment plan.

Furthermore, to establish the malpractice claim, a deviation from medical practice and the existence of damage must be proven. For this purpose, the full medical record must be demanded and obtained from the medical institution where the treatment was provided (including medical charts, lab test results, and imaging scans). Within the framework of legal representation, the patient will be referred to obtain a professional expert opinion from a specialist in the field in order to formulate the lawsuit and prove the link between the damage and the negligence.

From whom can compensation be claimed? (Physician, health fund, hospital)

Compensation can be claimed from the doctor and the medical institution under which the treatment was provided. Doctors are covered by professional liability insurance, so the claim is directed to the insuring company. When dealing with a medical institution belonging to the state – the lawsuit will be filed against the state, and when it is a hospital belonging to a health fund (Kupat Holim) – the lawsuit will be filed against the fund.

Collecting a full medical record (including digital logs and requests)

According to the Patient Rights Law, the patient has the right to receive all medical documentation regarding them. This documentation is crucial to prove medical malpractice in diagnosis, both to establish the damage caused to the patient and to anchor the professional expert opinion that will help prove the link between the damage and the negligent diagnosis.

The decisive importance of an expert medical opinion

An expert medical opinion is the central foundation for proving a medical malpractice claim. The expert's opinion helps prove whether the doctor or medical staff acted in accordance with the existing standard or was negligent in their duty, thereby causing a delay in diagnosis or a misdiagnosis. In addition, the expert physician, based on the information before them (the patient's condition and their medical record), seeks to prove the causal link between the negligence and the damage caused to the patient. As such, the medical opinion has a decisive role in the acceptance of the claim and the amount of compensation that will be awarded to the injured party. On the other hand, this is also the reason why tort claims in general and malpractice claims in particular are quite complex.

A complaint to the Ministry of Health vs. filing a civil lawsuit

A complaint to the Ministry of Health regarding the conduct of a medical entity is fundamentally different from filing a civil lawsuit. A complaint to the Ministry of Health is designed to protect the public and to examine the imposition of administrative sanctions (a fine or even license revocation) on the medical entity that acted contrary to accepted practice. Conversely, a civil lawsuit is the patient's way of realizing their right to receive compensation for the damage caused to them. It is possible to act on both levels, meaning to file a complaint against the medical entity with the Ministry of Health and concurrently file a civil lawsuit.

Medical Malpractice in Diagnosis - Frequently Asked Questions (FAQ)

Does every misdiagnosis or missed diagnosis automatically constitute medical malpractice?

No, not every misdiagnosis constitutes medical malpractice. To prove medical malpractice, a deviation from the accepted medical standard must be proven, along with establishing damage and a causal link between the negligence and the damage.

Is a doctor obligated to refer me to every existing test to rule out a disease?

Doctors are obligated to act according to accepted medical standards, weighing the benefit of the test against its inherent risks. The doctor is not required to refer for all tests to rule out a disease, and this is subject to their discretion in accordance with those standards.

Does an incorrect reading of a scan by a radiologist constitute ground for a lawsuit?

A misinterpretation can constitute ground for a lawsuit, but not across the board. The radiologist is bound by a duty of care toward the patient once they undertake to interpret the scan. To prove that the radiologist was negligent in their duty, it is necessary to show a deviation from the accepted standard and prove that a skilled and reasonable radiologist should have identified the finding. Subsequently, a causal link must be proven between the damage caused to the patient following the misinterpretation and the negligent act.

What happens if the medical system failed to update me about an abnormal result found in my file?

When the medical system fails to update about an abnormal result, it is usually a severe failure that amounts to medical malpractice. According to the accepted medical standard, the medical staff and institution have a legal duty to check test results and inform the patient of an abnormal finding in real time. If the medical system fails to update about an abnormal result, it can cause a delayed diagnosis, physical harm, or an irreversible worsening of the medical condition.

Is it possible to file a lawsuit if the misdiagnosis caused temporary suffering only, without permanent damage?

Temporary damage is still damage for all intents and purposes, and therefore, even in these cases, it is possible to sue for negligence, provided that what is required in tort claims is proven.