Delayed Diagnosis

This is the ninth article in our series aimed at providing a detailed examination of the challenges and pitfalls in different areas of medical negligence lawsuits, and approaches to overcoming them. Each article will focus on specific injuries and highlight the obstacles a plaintiff faces in bringing their case to a successful conclusion. By comparing cases involving similar injuries, we hope to illustrate how the plaintiff succeeded, and, when they did not, provide strategies that may have been available to improve their chance of success.

This article will focus on cases where injuries were caused by a delayed diagnosis, and will discuss when a delay in diagnosis constitutes negligence. The unique challenges of proving causation in such claims and the role of the conduct of the plaintiff will be examined in relation to when this can lead to a finding of contributory negligence or even a complete dismissal of the plaintiff’s claim.

The Duty to Diagnose

One of the many duties of a doctor is the duty to diagnose a patient once they have undertaken the patient’s care. A doctor is not expected to be infallible in diagnosing a patient. They must, however, exercise reasonable care, skill and judgement in coming to a diagnosis. If this is done, they will generally not be held liable even if their diagnosis turns out to be incorrect.1

The defense of “error of judgment” often comes into play in cases of missed or delayed diagnosis, which argues that the defendant cannot be held liable as long as they were reasonably exercising their clinical judgment, even if their judgment turned out to be an error. But if the physician does not avail themselves of the scientific means available for the collection of the best factual data to arrive at the diagnosis, does not accurately obtain the patient’s history, and/or does not refer the patient to the appropriate specialists, courts have found that the result is not an error of judgment but in fact constitutes negligence.2

In Pinch v Morwood 3, the infant plaintiff sustained a catastrophic brain injury after her mother suffered an eclamptic seizure. Two days before suffering the seizure, Ms. Pinch had attended the emergency department with complaints of neck pain that had kept her up all night. Allegations of negligence were brought against the emergency physician who assessed Ms. Pinch for failing to diagnose and treat her pre-eclampsia, a disorder in pregnancy characterized by high blood pressure, proteinuria, and headaches. If left untreated, pre-eclampsia can cause eclamptic seizures. It was uncontested that if pre-eclampsia had been diagnosed, treatment would have been provided that would have prevented Ms. Pinch’s eclamptic seizures and the resultant brain injury to her unborn child.

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Andrea Donaldson


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