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Michael J. Duber and Brandon T. Duber

Can You Sue a Doctor for Misdiagnosis?

Nov 14, 2017 |

In 2014, BMJ Quality & Safety conducted a study finding that approximately 12 million adults who seek outpatient medical care are misdiagnosed. A more recent study cites that more than 20% of patients who received a second opinion were misdiagnosed by their primary care providers. With that in mind, the thought of being misdiagnosed with cancer gets all the more real.

Cancer is a serious and life-threatening disease. If you or someone you know has been misdiagnosed with cancer there are steps you can take to receive some justice for the pain and suffering. Victims can file a medical negligence or medical malpractice lawsuit against the doctor or third party that’s responsible for the misdiagnosis.


As with any civil lawsuit, generally speaking, the plaintiff must prove within the preponderance of the evidence that the diagnosis/misdiagnosis party was negligent. In other words, the victim must prove evidence that the defendant is liable for the claims made by the victim

The basic components that establish a medical malpractice lawsuit include the following:

  • Evidence that the medical professionals acted negligently resulting in the misdiagnosis
  • Evidence that the misdiagnosis caused direct harm and damages to the victim
  • Evidence that the medical professionals misdiagnosis harmed the patient/victim
  • Evidence that there was an established “doctor-patient” relationship

Even if the medical professional in question acted with full competence and attention, a plaintiff can still prove negligence occurred. This is a key step in the legal process and must show direct impact.

Victims may have a legal case if one or more of the following occurred:

  • Laboratory testing failed to analyze or identify abnormal cells or tissues growth patterns
  • The medical professional disregarded laboratory orders to conduct additional testing
  • The medical professional ordered incorrect laboratory testing
  • The medical professional did not follow the proper procedures or protocol causing the ordering of the wrong tests
  • The medical professional failed to recognize apparent symptoms

Once one or more of the above listed negligent acts occur, cancer misdiagnosis plaintiffs can cite several damages like medical bills, lost employment wages, decreased earning capacity, pain and suffering, decrease in life enjoyment and loss of friendships. Attorneys can help guide this portion of the process, and we recommend consulting with a qualified attorney like the lawyers at Bentoff & Duber to proceed.

When the Bentoff & Duber team receives a medical malpractice case involving cancer misdiagnosis, our team’s initial investigation will shed light on whether or not the plaintiff has a strong case against the medical professionals involved. If you or a loved one believes they hold a case for medical negligence, give us a call.

About the author: Brandon Duber, a Partner with Bentoff & Duber Co., LPA, is a lawyer with proven experience in the courtroom and expertise in the areas of workers’ compensation, criminal defense, personal injury and medical malpractice law. He received his B.A. from Skidmore College in Saratoga Springs, NY and his J.D. from The Case Western Reserve University School of Law in Cleveland, OH.