Martindale-Hubbell
Best Law Firms
American Board of Trial Advocates
2010 Street Fighter of The Year Award Finalists
Irish Legal 100
The Best Lawyers in America
AVVO
Santa Clara County Bar
BBB
Super Lawyers
The National Trial Lawyers
California Lawyer
Top One
Santa Clara County Trial Lawyers Association

The Potential Harm of Delayed Diagnosis

DiagnosisWhile, very often, a doctor’s delay in successfully diagnosing a condition has negligible effects on the patient’s quality of life, it can in fact cause real harm, both physically and mentally. This is especially true in cases involving terminal illnesses or incurable conditions such as degenerative muscular disease. In cases such as these, delayed diagnosis may mean the difference between being able to plan for the future and being blindsided by it.

Wrongful Death and Survival Actions

One of the most common and understandable causes of action stemming from a delayed diagnosis is wrongful death. As one might imagine, if a diagnosis is made in time, a patient’s life expectancy stabilizes. Wrongful death is a cause of action based in negligence law, as is medical malpractice, so it is plausible to apply the reasoning for alleging malpractice to being liable for wrongful death.

There are two types of wrongful death actions available in California. The first is referred to as a wrongful death suit, and it is brought by the deceased’s surviving family, for causes of action such as pain and suffering. The second is called a survival action, and it is brought on behalf of the deceased person specifically. The reason it is called a survival action is because it is based on causes of action that the deceased would have been able to bring if they had survived. Medical malpractice is one of these - for example, if a doctor diagnoses an illness very close to its onset, the patient will likely survive, or at least have sufficient time to place their affairs in order. If a patient dies due to medical negligence, because the doctor failed to diagnose the illness in time, the family will still have the right to bring a medical malpractice suit.

Infliction of Emotional Distress

Another commonly alleged injury in California as a result of delayed diagnoses is the infliction of emotional distress, whether intentional or negligent. Most U.S. states have eliminated causes of action for negligent infliction of emotional distress (NIED), but California law still holds that in certain situations, NIED may be alleged against a civil tortfeasor. This is true for both the direct victim - in this case, the person diagnosed late - and for bystanders, who are usually family members.

While it is possible to allege NIED against a medical professional, the criteria for doing so are very strict. It must be proven, whether for a direct victim or a bystander, that (1) the medical professional was negligent in harming the victim or bystander; (2) the person suffered ‘serious’ emotional distress; and (3) that the doctor or medical professional’s conduct was a “substantial factor” in causing that distress. In the case of delayed diagnosis, it is extremely plausible to assume that emotions would run very high, and the shock of the actual diagnosis could easily cause extreme emotional distress. If the doctor can be shown to have breached the standard of care in delaying, or in causing such distress, you may be eligible for compensation for your injuries.

Contact a Medical Malpractice Attorney

If you or a loved one have just received a diagnosis that should have come far earlier, you may have a case to bring to court. Contacting a knowledgeable attorney can help clarify your options going forward. The San Jose delayed diagnosis attorneys at Corsiglia, McMahon & Allard, L.L.P. are well versed in this type of law and are happy to help answer your questions. Contact us today to set up an appointment. We serve San Jose, the Bay Area, and the counties of Monterey, Alameda, San Benito, Santa Clara and San Mateo.

Client Reviews
★★★★★
My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.