Oftentimes, medical malpractice arises from a physician’s failure to make an appropriate diagnosis when presented with a constellation of a patient’s signs and symptoms. After taking a history and examining a patient, it is incumbent upon the doctor to formulate a differential diagnosis. A differential diagnosis is a list of potential medical conditions that the patient could be suffering from that is consistent with the history, complaints and findings upon physical examination. For example, a lump in a woman’s breast could be a benign condition or potentially cancer. Accordingly, the doctor would be required to order the appropriate diagnostic tests to rule in or out potential medical conditions so as to arrive at an appropriate diagnosis. The failure of a physician to order the necessary diagnostic tests may give rise to a claim for medical malpractice.


When filing a lawsuit alleging medical malpractice involving the failure to diagnose cancer or other illness, the law recognizes that the patient is already suffering from a pre-existing medical condition (i.e. cancer). As such, if the doctor committed malpractice, the law will only allow the injured party to receive damages that are commensurate with the extent that the pre-existing condition (i.e. cancer) was worsened by the failure to timely diagnose the condition. For instance, if a lump in a patient’s breast was inappropriately diagnosed by a physician as benign when in fact it was cancer, the law would allow the patient to receive compensation only to the extent that the cancer was allowed to advance due to the doctor’s malpractice. If the cancer was a Stage I when the malpractice occurred and remained a Stage I when ultimately diagnosed then there would be no damages and therefore, no viable legal claim. However, if the cancer was likely a Stage I at the time the malpractice occurred but was later diagnosed as a Stage III or IV then there would be a viable claim for damages.

The delay in timely diagnosing the medical condition increased the risk of harm to the patient. The law requires juries when deciding a failure to diagnose medical malpractice case in New Jersey to allocate the percentage of harm that was caused by the illness and what percentage of harm was caused by the delay in diagnosis (i.e. cancer advancing from Stage I to Stage III or IV). By way of example, a jury may find that 20% was due to the pre-existing condition and 80% was caused by the delay. Accordingly, any amount of money awarded in damages would be molded to reflect the percentage of harm caused by the delay in diagnosis. In the example given, the total amount of damages would be reduced by 20% to reflect the harm that would have resulted from the pre-existing condition regardless of the medical malpractice.

This is an oversimplification of New Jersey medical malpractice law as it pertains to failure to diagnose cases. This area of the law is highly technical and requires the expertise of an attorney with the experience handling these types of matters. Our firm has extensive experience in handling failure to diagnose medical malpractice lawsuits. If you feel that you have suffered a delay in the diagnosis of a medical condition that caused you harm, please contact our firm. We may be able to help. The initial consultation with our firm is free and if we determine that you have a case we will represent you on a contingency fee basis which means that you do not pay any legal fees unless you win your case.