A failure to diagnose occurs when a doctor or healthcare provider misses, delays, or incorrectly identifies a medical condition. In New Jersey, this is a form of medical malpractice. If a delayed or missed diagnosis caused you harm, you may have grounds to pursue a legal claim for compensation.
Reach out to us at The Grossman Law Firm for legal help on your potential case. As a respected personal injury firm serving clients throughout New Jersey, we’ve helped many individuals pursue justice in complex medical malpractice claims. We understand how the law applies to failure to diagnose claims and what it takes to build a strong case. Our 27+ years of experience has resulted in multi-million dollar settlements for New Jersey clients who were hurt through others’ negligence.
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What Is Failure to Diagnose?
Failure to diagnose happens when a healthcare provider doesn’t identify a patient’s condition in a timely manner. It can take various forms: a doctor might miss a diagnosis entirely, delay identifying the condition, or misdiagnose the illness as something else.
These errors often involve serious conditions where timing matters. Some of the most commonly missed or delayed diagnoses are of:
- Cancer
- Heart attacks
- Blood clots
- Strokes
- Blood infection (sepsis)
- Lung infection (pneumonia).
When a doctor fails to catch these conditions early, patients may lose valuable treatment time. The disease can progress, treatment options may narrow, and outcomes often worsen.
Misdiagnoses are alarmingly common. An analysis of national data revealed that each year, about 795,000 Americans die or become permanently disabled because of diagnostic errors of dangerous diseases.
A separate study in the Journal of the American Medical Association found that the top diagnosis-related fault is in the assessment itself, as opposed to testing or physical examination, for example. Assessment faults include delay in diagnosis consideration and failure to see complications.
Common Types of Failure to Diagnose Cases
Certain conditions appear frequently in failure to diagnose claims. Cancer misdiagnosis is among the most common. When doctors miss early warning signs or misinterpret test results, patients may not receive treatment until the cancer has advanced.
Heart conditions also frequently involve diagnostic errors. Symptoms like chest pain, shortness of breath, or fatigue can be attributed to less serious conditions. Missing a heart attack or cardiovascular disease can have life-threatening consequences.
Stroke misdiagnosis is particularly time-sensitive. A systematic review by the Agency for Healthcare Research and Quality found that stroke is missed an estimated 17% of the time. Patients presenting with dizziness or vertigo face especially high rates of initial misdiagnosis.
Infections can also be missed or diagnosed late. Sepsis, meningitis, and appendicitis require prompt treatment. Delays in identifying these conditions can lead to serious complications or death.
Proving a Failure to Diagnose Claim in New Jersey
New Jersey law treats failure to diagnose as medical malpractice. To succeed in your claim, you must prove four essential elements.
- Duty of care: This refers to a professional’s duty to provide their patient with the standard level of care. It can only exist in a doctor-patient relationship, which means the medical provider had taken you on as a patient, and was not merely mentioning non-medical advice, for example.
- Breach of duty: You must demonstrate that the provider breached the standard of care. The standard of care is the level of skill, knowledge, and treatment that a competent physician in the same specialty would provide under similar circumstances. According to New Jersey Courts model jury charges, malpractice is a doctor’s failure to comply with this standard in the care and treatment of a patient.
- Causation: Third, you must prove that the breach directly caused your injury. In failure-to-diagnose cases, this typically means showing that an earlier diagnosis would have led to better treatment options or outcomes.
- Damages: You must show that you suffered actual damages. This includes medical expenses, lost income, pain and suffering, and other losses.
The Affidavit of Merit Requirement
New Jersey has specific procedural requirements for medical malpractice cases. Under New Jersey law, plaintiffs must provide an Affidavit of Merit from a qualified medical expert. This document must state that there’s a reasonable probability that the healthcare provider’s care fell below acceptable professional standards.
You typically have 60 days after the defendant files their answer to submit this affidavit. The court may grant one additional 60-day extension for good cause. Failing to provide a proper Affidavit of Merit can result in dismissal of your case.
For medical malpractice claims specifically, the expert who signs the affidavit must meet requirements set forth in the New Jersey Medical Care Access and Responsibility and Patients First Act. The expert generally must practice in the same specialty as the defendant physician and must hold appropriate board certifications.
Attorney Scott D. Grossman understands these procedural requirements and works with qualified medical experts to build credible cases for clients.
Statute of Limitations for New Jersey Failure to Diagnose Cases
Time limits apply to medical malpractice claims in New Jersey. Under New Jersey Statutes 2A:14-2, you generally have two years from the date of injury to file your lawsuit.
However, in failure-to-diagnose cases, determining when the clock starts can be complicated. New Jersey follows a “discovery rule.” If your injury couldn’t reasonably have been discovered within the standard two-year period, the statute of limitations may start running from when you discovered (or should have discovered) the injury.
For example, if a doctor missed your cancer diagnosis in 2023 but you didn’t learn about the error until 2025, the two-year period might start from when you discovered the misdiagnosis.
Special rules apply to certain situations. For birth injuries involving medical malpractice, claims must be filed before the child turns 13. If a public hospital or government employee was involved in your care, you may need to file a notice of claim within 90 days under the New Jersey Tort Claims Act.
What Compensation Can You Recover?
If you prove your failure-to-diagnose claim, New Jersey law allows you to recover several types of compensation or “damages” in legal terms.
Economic damages cover your financial losses such as:
- Medical bills (past and future)
- Lost wages
- Reduced earning capacity
- Rehabilitation costs.
Non-economic damages aim to compensate for intangible harms:
- Pain and suffering
- Mental or emotional distress
- Lost enjoyment of life
- Similar impacts.
In cases involving the death of a loved one, families may pursue a wrongful death claim. These cases allow recovery for burial expenses, loss of financial support, and loss of companionship.
Frequently Asked Questions
How long do I have to file a failure to diagnose lawsuit in New Jersey?
Generally, you have two years from the date of injury. However, the discovery rule may extend this deadline if you couldn’t reasonably have known about the diagnostic error earlier. Promptly consulting an attorney helps protect your rights.
What medical experts are needed for a “failure to diagnose” case?
New Jersey requires an Affidavit of Merit from a qualified medical expert who practices in the same specialty as the defendant physician. This expert must confirm that the care provided fell below acceptable standards.
Beyond this, we at The Grossman Law Firm work with a network of doctors and specialists relevant to the cases we handle. We tap specialized physicians to help us trace the misdiagnosis, understand its consequences, and translate the medical story into a clear and compelling legal case.
Can I sue a hospital for a failure to diagnose?
Yes. In New Jersey, you can sue hospitals, individual doctors, nurses, and other healthcare providers who contributed to the diagnostic error. The specific defendants depend on who was involved in your care.
What if my family member died due to a missed diagnosis?
You may have grounds for a wrongful death lawsuit. These claims can seek compensation for funeral expenses, lost financial support, and other damages. Time limits apply, so prompt action is important.
Key Points to Remember
- Failure to diagnose is a form of medical malpractice in New Jersey requiring proof of a doctor-patient relationship, breach of the standard of care, causation, and damages.
- New Jersey requires an Affidavit of Merit from a qualified medical expert, typically due within 60 days of the defendant’s answer.
- The statute of limitations is generally two years, though the discovery rule may apply when diagnostic errors aren’t immediately apparent.
- Common failure to diagnose cases involve cancer, heart conditions, stroke, and serious infections.
- Both economic and non-economic damages may be recoverable, depending on your circumstances.
Contact The Grossman Law Firm for Help With Your Personal Injury Case
If you believe a healthcare provider’s failure to diagnose caused you or a loved one harm, understanding your legal options is an important first step.
Scott D. Grossman, Esq. is a top-rated personal injury attorney in New Jersey. Visit Attorney Scott Grossman’s profile to learn more about his experience and results. Call (732) 625-9494 to schedule a consultation.
