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Misdiagnosis Malpractice

We’re trial lawyers. Our core competency – above everything else – is trying cases to juries. And we specialize in beating giants.


A misdiagnosis or failure to diagnose a medical condition can result in serious injury or death.

Misdiagnosis of symptoms and failure to properly diagnose a medical condition are two of the most common mistakes by doctors and other medical professionals.

Many serious medical conditions share some of the same symptoms as less serious conditions – this can lead to misdiagnosis.  Doctors are trained to use a technique called Differential Diagnosis, and systematically test for (and eliminate) the most serious conditions first.  If done properly, the Differential Diagnosis technique ensures that a serious condition won’t be missed because it shares symptoms with a mild condition and the doctor assumes that the patient probably has the more common, mild condition. However, if a physician does not perform a Differential Diagnosis, the odds of missing a serious condition dramatically increase.

There are also many conditions that require a specialist for diagnosis.  Doctors who do not refer patients out to specialists on certain types of conditions take an unnecessary risk of misdiagnosis, with potentially devastating consequences for their patients.

The most common misdiagnosed diseases and medical conditions are:

  • Cancer. Cancer often presents symptoms common to a number of other, milder conditions. The Journal of Clinical Oncology estimates that certain types of cancer are misdiagnosed nearly half the time. But the stakes are too high with cancer. Misdiagnosis or failure to diagnose cancer of course leads to a significant delay in treatment, which allows the cancer to spread. Timely diagnosis of cancer is often the difference between a patient surviving the illness or passing because of it. Factors that lead to a cancer misdiagnosis include:
    • Failing to refer a patient to the right specialist;
    • Failing to order the right testing and screening for a particular cancer;
    • Failing to consider a patient’s family medical history in making a diagnosis;
    • Failing to correctly interpret the results of medical tests; and
    • Failing to schedule important follow up appointments and tests.
  • Heart attack. Emergency room physicians sometimes fail to conduct the necessary tests to rule out a heart attack and instead diagnose a patient with indigestion, heartburn, or anxiety. Because heart attacks are lethal, failing to rule them out before diagnosing a milder condition falls short of the standard of care required of doctors. Heart attack misdiagnosis generally occurs when doctors:
    • Fail to recognize signs of a heart attack;
    • Fail to order vital tests, like a coronary angiography;
    • Misread test results, like an EKG, MRI, carotid ultrasound, blood test, or other lab result; or
    • Fail to follow up on lab test results.
  • Stroke. Strokes must be treated within the first 3 hours of symptom onset to prevent or reduce permanent damage. If a stroke isn’t diagnosed before 48 to 72 hours after symptom onset, then medical intervention can no longer help the victim’s ultimate outcome. Just as doctors sometimes confuse heart attacks with indigestion because of the similar symptoms, they also sometimes confuse strokes with migraine headaches or vertigo due to the similar symptoms. Stroke misdiagnoses can occur when physicians:
    • Fail to recognize stroke symptoms (this happens often with young people, who do not fit the typical profile for a stroke candidate, and may therefore be prematurely discharged by a doctor assuming that they must be experiencing vertigo, a migraine headache, or just drunkenness); or
    • Fail to order important tests, like a computed tomography ateriogram and magnetic resonance arteriogram for potential stroke victims.

Failure to properly and timely diagnose stroke can result in permanent brain damage or even death for the patient.

Some of the most common types of medical misdiagnosis are:

Mismanaged and Failed Lab Tests:

Medical labs that process hundreds of samples on a daily basis make mistakes, like:

  • Contaminating samples;
  • Testing the wrong patient sample; and
  • Reporting results to the wrong patient.

In a mismanaged lab test situation, you could be diagnosed with a condition that you don’t have, and worse, the health issues that you actually do have might not be properly identified and disclosed to you, so that you can get the right treatment.

Misread Test Results:

Primary doctors and specialists review many diagnostic tests, including CT-scans, MRIs, X-rays, blood tests, and PET scans. Their failure to correctly read and interpret test results can have catastrophic consequences for patients, including cancer, heart attacks, and blood clots.

Failure to Order or Follow Up On Testing:

Medical malpractice can occur when physicians fail to:

  • Order the appropriate tests indicated by symptoms;
  • Obtain the results of lab tests; or
  • Contact patients with abnormal test results.

Misidentified Symptoms:

This generally occurs when doctors fail to perform a differential diagnosis by eliminating the most serious possible conditions first, and then proceeding to more common (and mild) conditions. For example, a patient who complains about a persistent cough and coughing up blood should always be tested for lung cancer. Likewise, a patient complaining of sharp chest pain must be tested for a heart attack, even if the physician suspects that the patient is more likely suffering from indigestion.

You need to get your medical records if you think you’ve got a potential malpractice issue.  We can help you get those records and, more importantly, we can review those records with medical experts to help get you answers on whether you or a loved one was the victim of medical malpractice based on a missed or delayed diagnosis.

Here are some of the things that we look for in reviewing medical records for evidence of a missed or delayed diagnosis:

  • Your doctor didn’t order appropriate tests based on your symptoms, like an X-ray, CT scan, MRI, blood tests, or biopsy;
  • A pathologist incorrectly read your medical tests;
  • Your doctor didn’t follow up to obtain test results or failed to communicate those test results to you;
  • The lab misplaced your test results, read the wrong sample, or mixed up your lab results with someone else’s; or
  • Your doctor missed clear signs of a serious medical condition when reviewing your test results.

Contact our Minnesota Misdiagnosis  Lawyer Today.

Call our Minneapolis Misdiagnosis and Delayed Diagnosis Lawyer today at 612.349.2729, or fill out the form below. You need help from someone who knows what they are doing, to:

a) get all of your medical records;
b) get them to an expert for evaluation;
c) do a legal analysis of your case; and
d) get your case served within the statute of limitations, along with the Certificate of Expert Review.


We have a process that works in getting exceptional results for our clients. 

We are trial lawyers who prepare every case for trial from Day 1. Investigation and legal research are the first things we do, and we spend a lot of time on them. Because we haven’t filed the case yet, we have complete control – the defendant has no say and we want to use this time wisely.  We interview witnesses that can help us prove the case.  We’ll ask you for all relevant documents in your possession and review those carefully as well.  We also will spend some time conducting legal research about unique issues in the case.  We pull the jury instructions that the judge will ultimately charge the jury with after closing arguments at trial. 

Our next step is typically to send a demand letter to the defendant. In the letter, we thoroughly lay out: the facts surrounding the defendant’s misconduct; the applicable law (including statutory and case citations) that make clear that the defendant broke the law; an analysis of your damages and the defendant’s monetary exposure; a demand for a monetary amount to settle the claim; and an instruction to preserve all relevant evidence, including electronic evidence. The point of this letter is to give the defendant a chance to do the right thing and pay a fair amount before litigation, and to give the defendant an opportunity to present any defenses or evidence it wants us to consider before moving forward.  Sometimes we skip the demand letter if there are strategic reasons to move straight to filing, but we typically give defendants a chance to do the right thing.

If early negotiations fail, great – we file a Complaint and serve the defendant with it. A Complaint is a legal document that states the facts of what happened and alleges how the defendant broke the law. It formally starts the lawsuit.  Many lawyers draft complaints in a general and relatively vague way, just to get it done and filed – because that’s all that’s really required.  We take a different view. We view the Complaint as our first chance to tell your story to the judge, and we take it seriously. So we draft detailed complaints and include legal citations to statutory and judicial authority on unique points.  Sometimes we’ll include a number of exhibits, diagrams, or other demonstrative aids to help the Court understand our claims.  A secondary benefit of this approach is that defense lawyers reading the Complaint can become educated on the problems of their case and the state of the law – sometimes this leads them to reach out to us shortly after service of the Complaint to re-initiate settlement negotiations.  Of course, by that time, the price for settlement has gone up.

Some lawyers view written discovery as a necessary evil – something to get done and out of the way before depositions.  Not us.  Written discovery is a gift and an opportunity.  We spend a great deal of time crafting requests for documents and interrogatories (questions for the defendant to answer in writing) that are specific, detailed, and tailored to get what we need to prove our case.  Many lawyers – even great ones – think written discovery is a waste of time because defense lawyers typically answer them on behalf of their clients and can try to stonewall with legalese and objections.  We view this as a wonderful opportunity.  In our experience, most defense lawyers can’t help themselves when answering discovery: they over-state their defenses and make assertions that their clients will not be able to support in testimony. So we get to commit the defendant to defenses that they can’t back up, leading to contradictions, confusion, and chaos in their depositions later on.  We also use Requests for Admission – which many lawyers don’t.  The Federal Rules and Minnesota Rules of Civil Procedure allow us to ask defendants to “admit” certain facts.  We send them RFAs that are very difficult for them to deny.  Of course, they do it anyway, but that sets them up later for cost and fee-shifting, which the Rules mandate for defendants that deny RFAs that are later proven true.  And usually, we can get the defendants’ own witnesses to admit facts that their defense lawyers denied in RFA.  That’s a great situation that leads to more chaos and confusion on the defense side.

One last point on written discovery – we send multiple waves of it throughout discovery.  We typically send 3 or 4 sets of written discovery requests to defendants throughout discovery.  This compounds the problems for them, because the defense lawyers continue to overstate their defenses, but now run into contradictions from not just the defendant witnesses’ deposition testimony, but also their own previous discovery responses.  This makes for a great record that we can present to the judge at dispositive motions, and use for impeachment at trial.

This is our chance to question relevant witnesses, on the record with a court reporter (we typically videotape important depositions as well). We get to confront the defense witnesses with all of the evidence we’ve developed through written discovery and document production. By this time, the defendant put its witnesses in an impossible position through its written defenses, which are often untrue and indefensible.  So the witness has to either lie to support the defense, or admit it’s not true.  That’s a dilemma that works for our clients either way, no matter which option the witness takes.  We use depositions to expose contradictions, create a record for dispositive motions, lock witnesses into their stories so that we can impeach them later at trial, and sometimes, to show defense lawyers how hopeless their case is.  We often get calls from defense counsel shortly after depositions of their clients, seeking to re-start settlement negotiations.

The defendant will usually make a motion for summary judgment after discovery, asking the Court to throw out the case without having a jury trial. Because we’ve hit discovery so hard – both through written discovery and depositions – this is a tough motion for defense counsel to write in our cases.  We draft our response for the Court and now get to bring everything together: the admissions, contradictions, nonsense, and obvious fact disputes that we’ve uncovered through discovery.  We tell a compelling story that wraps everything together for the Court and makes clear that the defense motion has to be denied, and the defendant needs to face a jury for its conduct.

Sometimes, we’ll even make an affirmative motion for summary judgment, asking the Court to grant judgment in favor of our client without a trial. These motions are generally rare for plaintiffs to make, because the defendant can usually point to some fact dispute on its intent or some other factor that necessitates a trial. But we make affirmative summary judgment motions significantly more than is typical for plaintiffs, and that’s because the work we put in during discovery helps build a fantastic record to do so.

After the Court denies the defense motion for summary judgment, the defendant has only 2 options: 1) do the right thing and pay you a fair amount to settle your claim (usually much, much more at this point than the defendant could have paid at the beginning of the case to settle); or 2) face a jury for its conduct and risk an enormous verdict. This is the dilemma that we have been creating and forcing the defendant into for the entire case. We’ll engage in settlement negotiations at this point from a position of extreme strength, mainly because most defendants are (rightly) terrified of facing a jury to defend their conduct.

This is, candidly, our favorite part of the case – why we went to law school: to hold the powerful accountable before juries.  We prepare heavily for trial, including: detailed witness preparation, focus groups, and mock trials.  At this point, the potential outcomes and consequences for the defendant are much more severe than if it simply did the right thing at the beginning of the case and paid a fair amount to compensate our client for its misconduct.  As we advocate to the jury for our client, we’re also mindful of protecting the record so that defendants will be unsuccessful in attacking the verdict in post-trial motions or appeal.

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