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Posted on 21st April 2017

Can I Make a Medical Negligence Claim for Misdiagnosis

What is misdiagnosis?

Misdiagnosis is the act of a doctor or medical practitioner diagnosing you with a condition or illness that you don’t have. For example, if you come in with a chesty cough and high temperature your doctor could diagnose you with a chest infection, when actually you have lung cancer.

Misdiagnosis doesn’t always count as medical negligence, though it can, especially if it has caused you harm and the doctor has not done everything in their power to prevent this occurring.

Delayed diagnosis, where a doctor takes some time to come up with the right diagnosis, can be grounds to make a medical negligence claim. If the delay in diagnosis can be attributed to malpractice, then a claim may be brought.

Another type of diagnostic problem is when an illness or condition goes entirely undiagnosed.

How does it happen?

Misdiagnosis or delayed diagnosis normally happens when test results are not interpreted accurately, when the examination has not been thorough, or when you haven’t been referred to the appropriate specialist. Most of the time, misdiagnosis happens as a result of underestimating the seriousness of your symptoms. It can happen when doctors are under stress, pushed for time or simply make an error in judgement.

Since it’s acknowledged that mistakes do sometimes happen, not every single instance of misdiagnosis will be legally classed as medical negligence.

How frequently does it happen?

It’s difficult to find exact data on misdiagnosis as according to the Office for National Statistics the NHS doesn’t actually gather this data. Estimates tend to put the rate of diagnostic error somewhere between 10 – 15%.

In terms of negligence claims, in 2014/15 claims for misdiagnosis, delayed diagnosis or failure to diagnose accounted for 1,286 claims against the NHS which is 11% of all claims.

According to a report published by the National Confidential Enquiry into Patient Outcomes and Death (NCEPOD) which looked at 52 preventable deaths in the NHS in 2009, 30% were caused by misdiagnosis or failure to diagnose.

What are the consequences of misdiagnosis?

The medical consequences of misdiagnosis can be severe, depending on the nature of the illness you have and the wrong diagnosis you’ve been given. So, if you have lung cancer for example, and this goes undiagnosed, the consequences can be incredibly serious.

If you are misdiagnosed with a mental health problem you may be prescribed drugs that you don’t need that have adverse side effects.

Can you make a claim for it?

If you’ve been caused harm and your doctor has not properly performed their duty of care to you, then you can make a claim if you have been misdiagnosed. It has to be proven that malpractice has occurred and that you were harmed. Cases are considered in terms of what would have been done differently had an earlier, accurate diagnosis been given and whether this treatment would have made a difference to the outcome.

Common types of misdiagnosis:


Medical practitioners predict that lymphoma and breast cancer are the most likely cancers to be misdiagnosed. 400 doctors were asked what type of cancer they think would be misdiagnosed most often and 79 said lymphoma, whilst 53 said breast.

Breast Cancer Guidelines

Mental health problems – Bipolar

Mental health problems, in particular bipolar, are often misdiagnosed, partly because there’s no definitive test for any mental illness and diagnoses tend to come from patients’ subjective descriptions of their experiences.

Learning disabilities like ADHD and Autism

In recent years diagnoses of ADHD have shot up, and alongside these so have misdiagnoses. According to, inattention is often overemphasised as a symptom of ADHD, when it could be due all sorts of other everyday distractions.

Brain Injuries

Standard neurological examinations do not always show evidence of minor cerebral injury, even when it’s there. Studies have shown that despite evidence of brain damage in 31% of admitted mild traumatic brain injury (MTBI) patients, only 3% were referred for a neuropsychological evaluation.

Find out more about cerebral palsy here and general brain injury misdiagnosis here.

STIs like genital warts and herpes

Herpes is misdiagnosed approximately 20% of the time. Herpes has quite a distinctive appearance, which means that some doctors don’t bother to confirm the infection with a lab test because they believe they can tell it on sight. Visual verification however, isn’t always 100% accurate, and generally a lab test should be used to try and back up visual diagnosis. Herpes can be misdiagnosed as:

  • Syphilis
  • Impetigo
  • Genital Warts

Lab tests aren’t always 100% reliable either, though mistakes are quite rare.

Misdiagnosis that leads to death

There are instances where misdiagnosis can lead to fatalities. If a claim is brought in these instances a family member can still make a claim, but they will be making a claim for the suffering and loss that the family have experienced, not the suffering that the deceased relative underwent. The claim is still referred to as being brought “on behalf of the deceased relative”.

Further Information