Delay in Diagnosis – not always malpractice – not always a lawsuit

I would like to start with the following statement – NO ONE SHOULD WANT TO HAVE A MALPRACTICE LAWSUIT.

Being a plaintiff (that is what we call the party who files a lawsuit) is not fun. It’s emotionally exhausting, people pry into your personal and professional life, and you spend a year being judged, questioned, and often, not believed. It isn’t fun. But sometimes, it is necessary.

I would like to share another truth about Medical Care in America – BAD MEDICAL CARE DOES NOT MEAN YOU HAVE A LAWSUIT.

Bad care happens, all the time. Test results are missed, diagnosis not made, conditions go untreated and doctors miss stuff all the time. We could call that careless care, or bad care, or worse, but that doesn’t mean you have experienced malpractice, legally speaking.

Malpractice (legally speaking) is when a provider fails to meet the standard of care (ie – provides bad care) that causes significant or permanent injury to a patient.

(I like typing in bold so I will restate that)

Malpractice (legally speaking) is when a provider fails to meet the standard of care (ie – provides bad care) that causes significant or permanent injury to a patient. 

Sometimes, failing to diagnose a condition changes the outcome of the condition.

For example, if a tumor had been noticed on a CT 9 months ago, and it was encapsulated, it would have been diagnosed as stage II colon cancer, except no one read the CT and the tumor went on to perf. the wall of the colon and spread – now, being diagnosed as stage IV colon cancer. That delay in diagnosis, changes everything.

But a delay in diagnosis does not always mean you have a lawsuit.

For example, you have a ligament torn in your foot. It is not obvious on CT or X-Ray and so you suffer in pain for 3-6 months, going to physical therapy, missing your weekly tennis game or softball game – but beyond the pain, you suffer no permanent injury. Eventually an MRI is ordered, the condition diagnosed and fixed surgically.

The negligence (delay in diagnosis) didn’t cause the need for the surgery. The delay in diagnosis caused pain for many months – nothing more, or nothing less.

To the person who experienced the pain, it is certainly bad enough to want some kind of accountability, compensation – something. But, the standard of permanent injury has not been met. And permanent injury is important, for the following reason.

 Permanent Injury can be quantified

If I were to ask you, the value of your car – you may tell me what you paid, or what the outstanding loan is, or what Kelly Blue book says the value is.

But what is the value of your pain? How is that measured? Is it worth a dollar a day? Is it worth more? Is it worth more than your car? Your salary? It is a very difficult thing for measure value – when it comes to something like pain. And how on earth, in today’s world – would you get 7 strangers (a jury) to agree on the value of your pain? It’s not easy. Which is why, when someone calls our office, and they want to know whether their delay in diagnosis is a potential lawsuit, we often say:

While it is clear you did not receive the best care, we do not recommend a lawsuit as the costs of litigation may exceed your potential  recovery. 


While it is clear you did not receive good care, you cannot claim the subsequent surgery as part of your case, and are therefore left claiming weeks / months of pain as your only damage which while significant to you, is difficult to quantify to a jury. Ultimately, this would mean your case would not likely be successful, or valued high enough to make it worth your effort. 


In other words – sometimes, bad care happens, and there is no legal solution.


So, many clients ask:


And, my answer is often – send a letter to the provider. Send a kind but direct letter, explaining how their mistake has impacted you. After all, doctors are humans – and the vast majority of them went into medicine to make people better – not simply to maximize their RVUs.. A heartfelt letter might mean the mistake is not made again.

In sum, I hope you don’t have a malpractice case, because that would mean permanent injury. But if you do – and you want a kind, compassionate but skilled and respected group of attorneys to review your potential case, we would be honored to help.

Lauren Ellerman
Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at