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Failure to Diagnose Lawsuit in Florida: How Can You Recover Damages?

Failure to Diagnose Lawsuit in Florida: Recovering Damages

When a doctor fails to diagnose a patient’s condition properly, the law does not automatically hold them responsible. To win a failure to diagnose lawsuit in Florida, a patient (or their family) must prove four essential elements:

  1. Doctor–patient relationship. The doctor must have had a demonstrable duty of care toward the patient.
  2. Breach of the standard of care. The doctor’s actions (or failure to act) meant they provided a standard of care lower than what one would reasonably expect a medical professional to provide in this instance.
  3. The doctor’s breach of their duty of care caused the patient to suffer harm.
  4. The misdiagnosis led to some measurable harm, such as increased expenses, loss of income, or deteriorating health.

Florida law limits the time you have to file. In most cases, you must sue within two years from the date you knew, or reasonably should have known, about the missed diagnosis. This deadline is called the statute of limitations, and there are some exceptions, such as for children who experienced a misdiagnosis. These exceptions will be discussed in more depth later in the article.

In this article, we’ll break down:

Can You Sue a Doctor for Misdiagnosis in Florida?

Failure to diagnose happens when a healthcare provider fails to accurately identify a patient’s condition in a timely fashion, and in doing so provides a level of care that falls below the prevailing professional standard a doctor would be reasonably expected to provide to that patient.

The term “standard of care” refers to what a reasonably competent doctor would do under similar circumstances. If a doctor deviates from standard protocols or gives a diagnosis that other doctors would most likely disagree with, this could mean they’ve deviated from the accepted standard of care.

However, not all missed diagnoses amount to medical malpractice. Some conditions are difficult to detect early, and an unfavorable outcome does not automatically mean the doctor was negligent. Only missed or delayed diagnoses caused by negligence or omission are legally actionable.

Under Florida law, for a misdiagnosis to be actionable, the action has to arise out of “medical diagnosis, treatment, or care,” and (2) such diagnosis, treatment, or care was rendered by a “provider of health care.”

A valid claim requires proof of:

  • A doctor–patient relationship
  • Negligence in diagnosing the condition
  • Measurable harm that was caused by the negligence, such as worsened health, increased medical bills, or emotional distress

Law Tip: The hospital setting can influence the likelihood of medical malpractice claim. Overworked or inexperienced staff, teaching hospitals, outpatient clinics, seasonal surges in patient load, or outdated equipment can increase the likelihood of diagnostic errors. See our guide to hospital settings in surgical malpractice for more information about how different health care settings might carry different levels of risk.

Types of Diagnostic Errors in Failure to Diagnose Lawsuits

Diagnostic errors can take many forms, and understanding the types of mistakes that lead to failure-to-diagnose lawsuits is crucial for identifying negligence and seeking compensation. There are 6 common types of diagnostic errors that lead to lawsuits:

1. Complete Failure to Diagnose

This occurs when a doctor entirely misses a serious condition such as cancer, a heart attack, or a stroke, resulting in the patient receiving no treatment or the incorrect treatment. In many cases, clear and common symptoms are present and diagnostic tools are available, yet the provider fails to act.

2. Delayed Diagnosis

Here, the correct diagnosis is made, but only after a harmful delay. In progressive diseases such as cancer, a delay can mean the difference between the condition being discovered at a treatable or an untreatable stage.

3. Misdiagnosis

A misdiagnosis means the health care provider identified the wrong illness. For example, a doctor might diagnose acid reflux in a patient who is having a heart attack. This can lead to a delay in the patient getting treatment, or could cause the patient to be given incorrect and potentially harmful treatments for their condition.

4. Failure to Order Appropriate Tests

A doctor has a duty to order the appropriate diagnostic tests for their patients. These tests might include MRIs, blood work, or biopsies, depending on the symptoms the patient presents with. Choosing not to order these tests could lead to serious conditions going undetected or to a delay in reaching a diagnosis.

5. Failure to Follow Up on Test Results

If a doctor orders tests, they must review the results and act upon them in a timely manner. Misplaced test results, or ones that are ignored or never communicated, can lead to delayed diagnosis or a failure to diagnose. Communication breakdowns are a common factor in many surgical and other medical malpractice cases.

6. Inadequate Patient History or Physical Examination

Rushed examinations, poor communication between health care providers, and incomplete patient histories are all issues that can cause a misdiagnosis or delay an accurate diagnosis. This issue links back to the challenges faced in busy or poorly-staffed health care settings.

Medical Conditions Most Commonly Missed by Doctors

  • Cancer. Early detection is critical to ensure patients have the highest chances of successful treatment and long-term survival. Breast cancer and skin cancer misdiagnosis lawsuits often hinge on whether the doctor ordered the correct tests in a timely fashion. A cancer misdiagnosis lawyer can help make the case that tests should have been ordered.
  • Aneurysms. An aortic aneurysm can be fatal if it goes undetected. A competent physician should be able to identify the warning signs and respond promptly.
  • Heart Attacks. Women and young people who present with symptoms of a heart attack are often misdiagnosed. The symptoms are frequently mistaken for indigestion, anxiety, or panic attacks. A medical malpractice lawyer will make the case that proper tests should have been performed to rule out more serious issues.
  • Strokes. If treated promptly, it’s often possible to prevent a stroke from causing serious damage. Delay in identifying the warning signs of a stroke can lead to irreversible disability.
  • Blood Clots & Pulmonary Embolism. These issues can be deadly if left untreated. Conditions such as deep vein thrombosis are often misdiagnosed, leading to serious health issues that might otherwise have been avoidable.
  • Infections. MRSA, sepsis, and other hospital-acquired infections can be life-threatening, especially in older individuals. Even relatively young and healthy individuals can face serious health issues if a wound becomes infected and the infection isn’t noticed until it’s begun to spread.

Florida’s Deadline to File a Failure to Diagnose Lawsuit

Under Florida Statute § 95.11(5)(c),a person has two years from the date they knew, or should have known, about the missed diagnosis. This is known as the statute of limitations. In addition to this rule, there is a statute of repose, which states that no case may be brought against a medical professional more than four years after the malpractice occurred. There are some exceptions to these rules, namely:

  • Fraud or concealment. In the event that a health care provider acted fraudulently, the deadline may be extended to seven years.
  • Minor children. There are special rules to cover children who were injured before they turned 18, giving them time to start a case once they reach the age of majority.

Delays can permanently bar your claim. It’s critical to consult a malpractice attorney as soon as you become aware of a misdiagnosis or failure to diagnose.

How Much Money Can You Get for a Misdiagnosis?

Settlements vary widely, depending on the severity of the injuries and the type of malpractice that occurred:

  • Minor to moderate cases: $50,000–$250,000
  • Severe or life-altering cases: $300,000–$1 million+
  • Fatal outcomes or extreme negligence: $1 million–$5 million+

Factors influencing compensation include:

  • The severity and permanence of harm
  • Total medical expenses (current and future)
  • Lost income or earning capacity
  • Pain, suffering, and emotional distress
  • The strength of medical evidence
  • Whether there is insurance coverage available

Florida Statute 766.202 (3) & (8) defines economic and non-economic damages. Economic damages include quantifiable losses such as medical bills and lost wages. Up to 80% of a person’s lost earnings can be covered as economic damages. Non-economic damages cover pain, suffering, and loss of enjoyment of life.

Under Florida Statute 766.118, non-economic damages in medical malpractice cases are capped at $500,000 in most circumstances.

How Do I Win a Failure to Diagnose Lawsuit in Florida?

To prevail, you must establish:

  • The existence of a doctor/patient relationship: For malpractice to have occurred, there must have been a clear doctor/patient relationship.
  • Proof of a breach of the standard of care: While acting as a medical professional, the doctor must have deviated from the accepted standard of care. Meaning, they must have failed to behave in the way a reasonably skilled doctor would have acted.
  • Causation: By breaching the standard of care, the doctor must have failed to diagnose (or misdiagnosed) the patient’s illness, leading to an injury.
  • Damages: The failure to correctly diagnose the condition in a timely fashion must have caused some form of damages, such as worsened health, suffering, loss of earnings, or increased medical bills.
  • Affidavit from a Medical Expert Witness: Florida law requires plaintiffs to provide a pre-suit affidavit from a qualified medical expert stating there’s a reasonable basis for the claim. This is a critical statutory requirement that must be followed with specificity, otherwise your lawsuit will be dismissed by the court. See Florida Statute 766.102 regarding the qualifications a health care provider must possess to give expert testimony.

Challenges in Proving Failure to Diagnose Malpractice in Florida

Under Florida law, there is a high bar of evidence required to prove medical malpractice, especially in the case of failure to diagnose cases. This is because many conditions are difficult to diagnose or have subjective symptoms that might be hard to quantify.

To prove a failure to diagnose, the plaintiff must provide detailed medical records and credible expert testimony indicating that a skilled doctor would be reasonably expected to have made different decisions in the same circumstances.

The plaintiff must prove both that the doctor acted negligently and that their actions (or inaction) caused harm. The defendant has the right to argue that they made the right decisions, and/or that the harm was due to the underlying disease. Medical professionals have strong legal defenses and insurance to protect them, making the court process a long and stressful one.

If you, or someone close to you, has suffered harm as a result of a misdiagnosis or failure to diagnose a health condition, consulting a medical malpractice attorney early is critical.

Steps to Take If You Suspect a Failure to Diagnose

As soon as you become aware of an incorrect or missed diagnosis, it’s important to seek professional advice. Follow these processes if you suspect a failure to diagnose:

  • Get a second medical opinion. Consult with a different provider and keep records of their diagnosis. This evidence might help with your claim.
  • Request your medical records. Obtain copies of all your health care records, test results, and medical bills.
  • Write down what happened. Keep a journal documenting your symptoms and how they affect your day-to-day life. Log any visits to the doctor, what’s said, and any delays or issues you experience.
  • Track expenses and loss of income. Keep track of any out-of-pocket expenses, any loss of earnings, and any non-financial ways in which your medical condition is affecting your quality of life.
  • Keep a diary of your daily activities. Record how your injuries have affected your daily activities. List the activities that you were able to engage in prior to your injuries and after your injuries.
  • Avoid public discussion. Anything you post online could be used against you. Avoid discussing your case in public, especially on any platforms where your posts can easily be traced back to your identity.
  • Speak with a medical malpractice attorney. As soon as you become aware of the issue, contact a medical malpractice attorney to have your case evaluated. A skilled attorney can tell you if your case is likely to succeed and give advice on the next steps.

Filing a lawsuit involves meeting specific pre-suit requirements and adhering to strict deadlines, as explained in our guide, How to File a Medical Malpractice Lawsuit in Florida.

How a Medical Malpractice Attorney Can Help

Working with an experienced medical malpractice attorney can help maximize your claim based on:

  • Their experience with presenting to a jury complex medical evidence in a way that is easily understood;
  • Knowing the appropriate experts to hire and having insight on whether an expert will be able to persuasively present to a jury that a healthcare professional or hospital breached the prevailing professional standard of care, or be able to persuasively quantify the impairment to a victim’s future earning capacity or future medical needs;
  • Having knowledge of how most insurance companies handle these claims; and
  • Having years of experience examining medical malpractice facts, applying the law, and effectively asking juries to render verdicts for clients that make them whole again.

To learn more about how we can help with your medical malpractice case or discuss the details of your potential failure to diagnose lawsuit, contact Alan Sackrin via our contact form or call (954) 458-8655.