Failure to Order Diagnostic Tests: Proving Negligence in NY

The Duty to Order Appropriate Diagnostic Tests

Healthcare providers have a duty to order appropriate diagnostic tests when a patient presents with symptoms that warrant investigation. This duty is part of the broader duty to meet the standard of care -- the level of care that a reasonably competent provider in the same specialty would provide under similar circumstances.

The duty to order tests includes:

• Considering the differential diagnosis: The provider should develop a list of possible conditions that could explain the patient symptoms (the differential diagnosis).
• Ordering tests to confirm or rule out conditions: The provider should order tests that will help confirm or rule out the conditions in the differential diagnosis, particularly serious or life-threatening conditions.
• Ordering tests in a timely manner: The tests should be ordered promptly, particularly when a serious condition is suspected.
• Following up on test results: The provider should review the test results, communicate them to the patient, and take appropriate action based on the results. [Link to: /delayed-diagnosis-lawyer/vs-negligent-treatment]
• Referring to a specialist: When the condition is outside the provider expertise, or when the diagnosis is uncertain, the provider should refer the patient to a specialist.

When Is a Failure to Order Tests Malpractice?

Failure to order diagnostic tests constitutes medical malpractice in New York when:

• The provider failed to order tests that a reasonably competent provider would have ordered under the circumstances.
• The provider failed to consider a serious condition in the differential diagnosis, and therefore did not order tests to rule it out.
• The provider dismissed or minimized the patient symptoms without appropriate evaluation.
• The provider failed to follow up on abnormal results or concerning symptoms with additional testing. [Link to: /delayed-diagnosis-lawyer/vs-negligent-treatment]
• The failure to order tests caused harm -- the condition went undiagnosed or was misdiagnosed, allowing it to progress and cause serious injury or death.

Common Tests That Are Not Ordered

Some of the most commonly missed tests include:

• Imaging studies: CT scans, MRIs, ultrasounds, and x-rays that could diagnose strokes, tumors, fractures, aneurysms, and other serious conditions. [Link to: /radiology-errors/ct-scan-negligence] [Link to: /radiology-errors/mri-malpractice]
• Laboratory tests: Complete blood count (CBC), blood chemistry, cardiac enzymes, D-dimer, blood cultures, and other lab tests that could diagnose infections, cancers, heart attacks, and blood clots. [Link to: /medical-malpractice/sepsis-malpractice] [Link to: /medical-malpractice/heart-attack-misdiagnosis]
• Biopsies: Tissue samples that could diagnose cancer. [Link to: /medical-malpractice/cancer-misdiagnosis]
• ECG (electrocardiogram): For patients with chest pain or heart symptoms. [Link to: /medical-malpractice/heart-attack-misdiagnosis]
• CT angiography: For patients with suspected aortic dissection or pulmonary embolism. [Link to: /misdiagnosis/aortic-dissection-misdiagnosis] [Link to: /misdiagnosis/pulmonary-embolism-misdiagnosis]
• Transvaginal ultrasound: For women with suspected ectopic pregnancy.
• Lumbar puncture (spinal tap): For patients with suspected meningitis or subarachnoid hemorrhage. [Link to: /misdiagnosis/meningitis-misdiagnosis]
• Colonoscopy: For patients with symptoms concerning for colon cancer. [Link to: /misdiagnosis/colon-cancer-misdiagnosis]
• Mammogram: For women with breast abnormalities. [Link to: /misdiagnosis/breast-cancer-misdiagnosis] [Link to: /radiology-errors/mammogram-malpractice]
• Cardiac stress test: For patients with suspected coronary artery disease.

How Failure to Order Tests Causes Harm

When a provider fails to order appropriate diagnostic tests, the consequences can be devastating:

• Delayed diagnosis of cancer: Failure to order imaging, lab tests, or biopsies can delay cancer diagnosis, allowing the cancer to progress to a more advanced stage with lower survival rates. [Link to: /medical-malpractice/cancer-misdiagnosis] [Link to: /misdiagnosis/stage-migration]
• Delayed diagnosis of stroke: Failure to order a CT scan can delay stroke diagnosis, causing permanent brain damage or death. [Link to: /medical-malpractice/stroke-misdiagnosis]
• Delayed diagnosis of heart attack: Failure to order an ECG or cardiac enzymes can delay heart attack diagnosis, causing permanent heart damage or death. [Link to: /medical-malpractice/heart-attack-misdiagnosis]
• Delayed diagnosis of sepsis: Failure to order blood cultures or lactate can delay sepsis diagnosis, causing organ failure or death. [Link to: /medical-malpractice/sepsis-malpractice]
• Delayed diagnosis of aortic dissection: Failure to order a CT scan with contrast can delay aortic dissection diagnosis, causing death. [Link to: /misdiagnosis/aortic-dissection-misdiagnosis]
• Delayed diagnosis of ectopic pregnancy: Failure to order a pregnancy test or ultrasound can delay ectopic pregnancy diagnosis, causing rupture and loss of the fallopian tube or death.
• Delayed diagnosis of meningitis: Failure to order a lumbar puncture can delay meningitis diagnosis, causing brain damage or death. [Link to: /misdiagnosis/meningitis-misdiagnosis]
• Delayed diagnosis of pulmonary embolism: Failure to order a CT angiogram or D-dimer can delay PE diagnosis, causing death. [Link to: /misdiagnosis/pulmonary-embolism-misdiagnosis]

The Standard of Care for Diagnostic Testing

The standard of care for diagnostic testing depends on the patient symptoms, risk factors, and the provider specialty. However, some general principles apply:

• Chest pain: The standard of care requires an ECG, cardiac enzymes, chest x-ray, and consideration of CT angiography (for aortic dissection or pulmonary embolism) in patients presenting with chest pain. [Link to: /medical-malpractice/heart-attack-misdiagnosis]
• Abdominal pain: The standard of care requires appropriate imaging (CT, ultrasound) and laboratory tests depending on the location and nature of the pain. For women of reproductive age, a pregnancy test should be performed. [Link to: /misdiagnosis/appendicitis-misdiagnosis]
• Headache: The standard of care requires consideration of CT or MRI for patients with sudden, severe headaches (thunderclap), headaches with neurological symptoms, or new headaches in older patients. [Link to: /medical-malpractice/stroke-misdiagnosis]
• Shortness of breath: The standard of care requires appropriate evaluation (chest x-ray, CT, D-dimer, ECG) depending on the clinical presentation. [Link to: /misdiagnosis/pulmonary-embolism-misdiagnosis]
• Back pain: The standard of care requires consideration of MRI for patients with back pain and neurological symptoms (cauda equina syndrome, spinal abscess). [Link to: /spinal-cord-injury/cauda-equina-syndrome] [Link to: /spinal-cord-injury/spinal-abscess]
• Fever and altered mental status: The standard of care requires consideration of blood cultures, lactate, and lumbar puncture (for meningitis). [Link to: /medical-malpractice/sepsis-malpractice] [Link to: /misdiagnosis/meningitis-misdiagnosis]

Proving Your Failure to Order Tests Case

To prove a failure to order tests case, you need:

• Medical records: Including physician notes, orders, laboratory results, imaging reports, and consultation notes. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
• Expert review: Independent review by board-certified physicians in the relevant specialty to establish what tests should have been ordered.
• Standard of care evidence: Establishing what the standard of care requires for a patient with your symptoms.
• Causation evidence: Establishing that the failure to order tests caused harm -- for example, that if the test had been ordered, the condition would have been diagnosed earlier and the outcome would have been different. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]
• Expert testimony: From qualified experts.

New York Statute of Limitations

Failure to order tests claims are subject to the 2.5-year statute of limitations for medical malpractice (CPLR 214-a), running from the date of the negligent act.

Key considerations:

• Date of the negligent act: The 2.5-year clock starts on the date the provider should have ordered the tests.
• Continuous treatment doctrine: If you continued to receive treatment from the same provider for the same condition, the statute may be extended.
• Lavern's Law (cancer): If the failure to order tests involved cancer, Lavern's Law provides 2.5 years from the date of discovery, with a 7-year outer limit. [Link to: /misdiagnosis/laverns-law]
• Municipal hospitals: If the failure occurred at a municipal hospital (NYC Health + Hospitals), a notice of claim must be filed within 90 days. [Link to: /hospital-negligence/suing-nyc-h-h]
• Wrongful death: If the failure caused death, the wrongful death claim must be filed within 2 years. [Link to: /wrongful-death-lawyer]

Common Defense Arguments and How We Counter Them

Defense: The test was not indicated based on the patient presentation.

Defense attorneys use several arguments in failure to order tests cases:

• Our Counter: We use expert testimony to establish what the standard of care requires for a patient with your symptoms. If a reasonably competent provider would have ordered the test, the standard of care was breached. We examine the medical records to determine what symptoms were documented and what the provider differential diagnosis was.

Defense: The test would not have changed the outcome.

Our Counter: We use expert testimony to establish that the test, if ordered, would have led to an earlier diagnosis and a different outcome. For example, a CT scan would have diagnosed a stroke earlier, allowing thrombolytic therapy and preventing permanent brain damage. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]

Defense: The patient did not report the symptoms clearly.

Our Counter: The standard of care requires the provider to take a thorough history and to ask appropriate questions. If the provider did not ask the right questions, or if the provider dismissed the symptoms the patient did report, the provider is liable, not the patient.

Defense: The test was ordered but the results were not available in time.

Our Counter: If the test was ordered, we examine whether it was ordered in a timely manner and whether the results were followed up on. If the provider failed to follow up on the results, the provider is liable. [Link to: /delayed-diagnosis-lawyer/vs-negligent-treatment]

Compensation Available

A successful failure to order tests claim in New York can provide compensation for:

• Medical expenses: Including past and future medical care, surgeries, rehabilitation, and medications
• Lost wages and lost earning capacity: For time missed from work and reduced ability to work
• Pain and suffering: NY has no cap on non-economic damages
• Permanent disability: For brain damage, organ damage, amputation, and other permanent conditions
• Future medical care costs: Based on a life care plan, discounted to present value
• Loss of consortium: For the impact on family relationships
• Wrongful death damages: If the failure caused death [Link to: /wrongful-death-lawyer]

What to Expect Working with MDLaw Firm

When you contact MDLaw Firm about a potential failure to order tests case:

• Free Consultation: We listen to your story and review the basic facts.
• Immediate Deadline Assessment: We evaluate the 2.5-year statute of limitations, Lavern's Law (for cancer cases), and any municipal notice of claim deadlines.
• Record Retrieval: We obtain all medical records, including physician notes, orders, laboratory results, and imaging reports. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
• Expert Review: We engage board-certified physicians in the relevant specialty to independently review the records and establish what tests should have been ordered.
• Causation Analysis: We establish that the failure to order tests caused harm.
• Litigation: We file within the statute of limitations and handle all aspects of discovery and trial.
• Resolution: We pursue maximum compensation through settlement or verdict.

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.