Failure to Diagnose

Failure to diagnose is also, perhaps, the most controversial type of malpractice claim. Politically, it is the most common reason given for assertions of “defensive medicine.” Personally, it appears ' in my anecdotal experience, at least ' to be the type of claim doctors themselves focus on the most when they complain about medical malpractice. It just seems so unfair, they say, to be judged for getting a diagnosis wrong after the fact if they put in a good-faith effort. “Hindsight is 20/20,” and so on and so forth; my favorite medical description of making a diagnosis with the benefit of hindsight is “using the retrospectroscope.”

Often, when I read about or hear from a doctor raising concerns about liability for a failure to diagnose, his or her argument is the same: Medicine is mostly a bunch of guesswork, so unscientific and subjective that it cannot be judged. The doctors never say it that way, but the gist of this argument is that the mental steps taken by a doctor attempting to diagnose a patient simply cannot be reviewed in an objective manner because diagnosis is a form of gestalt, where the doctor uses intuition to tie together disparate symptoms in an ineffable way. When I tell them, “That's malpractice ' you should use the differential diagnosis,” they're fit to be tied.