When Patients Are Not Believed: Diagnostic Delay and the Limits of American Tort Law
In 2018, twenty-four-year-old Hannah Catton had symptoms of bloating, extreme abdominal pain, multiple urinary tract infections, significant fatigue, and irregular menstrual cycles. For three years, she went to numerous physicians across Australia and the United Kingdom. Every doctor sent her away, claiming the symptoms were due to stress or hormonal changes. After years of terrible and worsening pain, an ovarian tumor the size of a volleyball was discovered that needed immediate surgery. Catton felt she “knew something was wrong” way before any doctor was ready to believe her. [1]
American medical malpractice laws test if a delayed diagnosis can truly cause physical harm, but rarely recognize the legal issue attributed to the delay itself. While some patients receive firm diagnoses, others endure months, or even years, of doctors dismissing their pain as psychological or exaggerated. Racial minorities, women, those with chronic pain, and younger patients are especially harmed by this misconception. For these groups, the biggest failure of the healthcare system is not the prolonged diagnosis, but the refusal to believe them before the diagnosis is eventually made. This article will argue that these epistemic injustices should be considered legal injury. With an understanding of the delayed diagnosis doctrine, epistemic injustice, and tort law, courts should recognize epistemic harm when healthcare workers overlook credible patient testimonies. This approach would not impose liability for every missed diagnosis, but rather would recognize that the denial of patient credibility can foreseeably produce prolonged suffering, delayed treatment, and a diminished trust in medicine. As medical science continues to acknowledge the role of diagnostic bias in healthcare outcomes, tort law should also evolve to recognize that some of the most significant harms occur long before a diagnosis is ever confirmed.
Catton’s experience is one of many persistent diagnostic errors that is part of potentially the biggest national patient safety concerns within the realm of healthcare. [2] The National Academies of Sciences, Engineering, and Medicine estimate that every human being will experience at least one diagnostic error during their life. [2] Approximately 12 million American adults, almost one in every twenty, experience a diagnostic error every year, and about half of those errors have the potential to result in major harm. Research cited by the National Academies found that patients are interrupted after an average of only twelve seconds when describing their symptoms, limiting physicians' opportunity to hear information essential to accurate diagnosis. [2] These disparities suggest that delayed diagnosis is not merely a failure to identify the disease, but also a failure of adequately understanding the patient.
American malpractice law acknowledges delayed diagnosis when looking at only physical injury. In these cases, the four traditional parts of negligence: duty, breach, causation, and damages, allow a physician to ask if they failed to give reasonable medical care and determine if that failure caused the patient’s condition to worsen. Courts look at injury through physical deterioration and do not allow patients to see the harms that occur during the medical process itself. Many courts have seen that the traditional malpractice doctrine does not truly represent the consequences of the delayed diagnosis. [3] In Helling v. Carey (1974), the Washington Supreme Court declared ophthalmologists liable for not administering a simple glaucoma screening test to a young patient despite evidence that the physicians had complied with prevailing professionalism. [3] The court ruled that routine medical practice does not necessarily satisfy the legal standard of all reasonable care when there were inexpensive diagnostic measures that could have prevented the delayed diagnosis and resulting harm.
The Massachusetts Supreme Judicial Court debated a similar case in Matsuyama v. Birnbaum (2008), where the loss-of-chance doctrine was adopted for the claim of delayed diagnosis. [4] The court saw that negligent delay may deprive patients of a better medical outcome rather than requiring the plaintiffs to prove that earlier treatment would have definitively had a better outcome. Michelle Mello, a Professor of Law at Stanford Law School, similarly argues that medical malpractice fulfills functions beyond mere compensation. [5]
Current tort law reviews the physical consequences of delayed diagnosis, but often overlooks the credibility failures that cause the delays. The system cites diagnostic failures as a result of breakdowns with communication, inability to provide proper testing, and missed opportunities to recognize continuous symptoms, but tort law continues to evaluate the delayed diagnosis principally through the focus of measurable physical injury. [2] As a result, patients often recover only after testing can objectively verify that they were harmed, rather than when the healthcare system first failed to meaningfully investigate the concerns they repeatedly presented. In her book, Epistemic Injustice: Power and the Ethics of Knowing, philosopher Miranda Fricker displays that testimonial injustice occurs when prejudice causes decision-makers, such as physicians, to give less credibility to a person’s testimony than it deserves. [6]
Havi Carel and Ian James Kidd, two philosophers working on issues surrounding healthcare, directly examine Fricker’s concept by claiming that in the context of illness, there will always be epistemic injustices. Both argue that illness puts patients in vulnerable positions where they rely on physicians to validate and decide their experiences. [7] When those experiences are dismissed, patients suffer an epistemic injustice that goes beyond the actual disease. A professor of philosophy, Kristie Dotson further develops this definition by pointing out that credibility issues are seldom discrete encounters between particular speakers and hearers. According to her, epistemic violence occurs through institutional procedures that interfere with the proper function of testimony. [8] In the context of health care, such "hearers" do not consist of physicians only but include hospitals, health care systems, insurance policies, and the set of rules governing the practice of medicine, which determines who among patients should be investigated.
Physicians need not uncritically believe every patient, nor should liability arise whenever a diagnosis proves incorrect. Instead, the law should recognize that repeatedly disregarding credible patient complaints without reasonable investigation can itself inflict foreseeable injuries independent of disease progression. The law has long recognized the injury that appears on an MRI or pathology report. It is time to recognize the injury that occurs when patients spend years trying to convince someone that those tests should have been ordered in the first place.
If testimonial injustice is just a product of physician error, then it is a small challenge to the existing tort doctrine. However, if the credibility deficits are measurable patterns across the population, then it is the result of systemic bias that is structured in healthcare itself. The prolonged time between developing symptoms and getting a diagnosis can frequently be attributed to trivialization and disregarding women's pain. In her book Doing Harm, journalist Maya Dusenbery mentions that women "had to be persistent advocates for themselves in order to get testing which would have happened long ago if their symptoms had been considered believable." It means that the issue of diagnostic delay starts not because the disease is difficult to diagnose, but because the patient is not believed before that happens. The seminal article by professors and researchers Diane Hoffmann and Anita Tarzian, “The Girl Who Cried Pain,” proves that women have been persistently undertreated for pain relative to men despite the same symptoms. Hoffmann and Tarzian surveyed decades of medical literature and concluded that women are consistently more likely than men to have their pain underestimated, undertreated, or attributed to psychological rather than physical causes, even when presenting with comparable symptoms. [9] Their findings suggest that doctors tend to view women’s pain as stemming from emotional reasons, whereas men’s pain suggests actual physical illness. [9]
This gap of credibility exists across racial minorities as well. As part of the report “Unequal Treatment,” the Institute of Medicine reported that there are racial and ethnic differences that exist when making medical decisions. [10] These differences include factors such as insurance, socioeconomic status, disease severity, and access to healthcare. The authors in this report cite stereotypes, bias, prejudice, and uncertainty as reasons for the medical inequalities. Evidence shows that Black patients are less likely than white patients to be given or offered diagnostic testing and imaging, referred to specialists, and treated for pain in response to similar symptoms. [10] This is not just an inequality of medical care; it is an inequality of credibility.
In the landmark case of Canterbury v. Spence (1972), the U.S. Supreme Court ruled that malpractice law does not solely protect the physical well-being of the patient. [11] Rather, the Court held that the physician has affirmative duties regarding communication with the patient to ensure effective medical decision-making. It was noted in Canterbury that "every human being of adult years and sound mind has a right to determine what shall be done with his own body." [11] The case also established that the "physician's duty to disclose is not governed by medical custom alone," since the duty of disclosure is based on the right of the patient to choose. [11] As such, it is evident that malpractice law has always recognized the existence of legally protected interests that are independent of physical degeneration. Indeed, when the physician disregards the symptoms presented, does not provide an explanation for the uncertainty of diagnosis, and does not look into possible alternatives, the physician violates the very essence of Canterbury. A doctor may be competent in diagnosis and medical treatments, while simultaneously violating professional duties through poor communication skills, insufficient documentation, and lack of interest in a patient’s problems, delaying diagnosis.
The decision of Canterbury is further emphasized by the report Improving Diagnosis in Health Care from the National Academy of Medicine. In its conclusion, the report states that diagnostic errors do not stem only from mistakes in medical knowledge, but often occur because of systemic problems in communication, follow-ups, lack of information gathering, and failure to notice new symptoms. [2] This article is not merely an effort to grow the scope of medical malpractice law, it is an attempt to redefine what injury means under the law. It acknowledges a principle that lies at the heart of both medicine and justice: listening is not an act of compassion alone, but rather of responsibility. A healthcare system cannot diagnose what it refuses to investigate, and it cannot investigate what it refuses to hear. Likewise, a legal system cannot fully remedy healthcare harm while ignoring the credibility failures that so often make that harm possible. When does injury begin? Existing doctrine answers: when disease progresses, when disability occurs, when medicine can finally prove what happened. Injury begins much earlier. It begins the moment a patient's voice is unreasonably dismissed despite warranting investigation. Justice, then, should not wait for an MRI, a pathology report, or a laboratory result to confirm what patients have been saying all along. A legal system committed to fairness should be willing to recognize that sometimes the first injury is not what happened to the body, but what has happened to the person's voice.
Edited by Ella Hummel.
[1] Jonathan Edwards, “Doctors repeatedly told a woman stress was causing her symptoms. Then they pulled out a volleyball-size tumor,” Washington Post, February 9, 2022, https://www.washingtonpost.com/nation/2022/02/09/hannah-catton-ovarian-cancer-australia/
[2] National Academies of Sciences, Engineering, and Medicine. Improving Diagnosis in Health Care. National Academies Press, 2015. https://pubmed.ncbi.nlm.nih.gov/26803862/
[3] Helling v. Carey, 519 P.2d 981 (Wash. 1974). https://law.justia.com/cases/washington/supreme-court/1974/42775-1.html?__cf_chl_f_tk=lHb2OE6MwDhDdiORCH5iHawgPERSvHGOspRvI3UedtA-1783091913-1.0.1.1-tuFuRtl_Si7LVOqo_YbkY3DP55A2ZosOQdarVe9AWg0
[4] Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008). https://law.justia.com/cases/massachusetts/supreme-court/volumes/452/452mass1.html
[5] Michelle M. Mello & Claudia H. Williams. Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms. Robert Wood Johnson Foundation, 2006. https://pubmed.ncbi.nlm.nih.gov/22051629/
[6] Miranda Fricker. Epistemic Injustice: Power and the Ethics of Knowing. Oxford University Press, 2007. https://academic.oup.com/book/32817
[7]Havi Carel & Ian James Kidd, Epistemic Injustice in Healthcare: A Philosophical Analysis, Medicine, Health Care and Philosophy 17, no. 4 (2014): 529–540.
[8] Kristie Dotson. "Tracking Epistemic Violence, Tracking Practices of Silencing." Hypatia 26, no. 2 (2011): 236–257. https://www.jstor.org/stable/23016544
[9] Diane E. Hoffmann & Anita J. Tarzian, "The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain," The Journal of Law, Medicine & Ethics 29, no. 1 (2001): 13–27. https://pubmed.ncbi.nlm.nih.gov/11521267/
[10] Institute of Medicine. Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care. National Academies Press, 2003. https://www.ncbi.nlm.nih.gov/books/NBK220358/
[11] Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). https://law.justia.com/cases/federal/appellate-courts/cadc/22099/22099.html