A patient is diagnosed with breast cancer later than she should have been. Imaging revealed something to follow up on but that follow up never happened.
Could this be considered medical negligence? What about criminal behavior?
Medical malpractice (civil negligence) deals with if the proper standard of care was followed. Criminal recklessness may apply when someone consciously disregards a substantial and unjustifiable risk, if the charged offense requires that mental state. The legal test depends on the statute.
Here is what this article covers:
Situations that could be considered medical malpractice
Difference between medical negligence and criminal behavior
Breast cancer diagnosis example
Information you may want to collect
Medical Negligence (Malpractice)
In the United States, medical malpractice (also known as medical negligence) typically involves what is called the standard of care. The standard asks what a reasonably competent medical professional would have done in similar circumstances.
You would want to show that:
You had a doctor-patient relationship (or other medical provider relationship)
Your medical provider failed to adhere to the standard of care
This error resulted in your injuries
You sustained damages from those injuries
If a radiology report recommends more imaging but never reaches the clinician responsible for arranging it, that may raise questions about whether the standard of care was met.
Just because there was an error does not always mean your injury was the result of that error. An expert may need to opine if your injury would have been prevented or detected sooner with proper treatment.
There are various types of damages you could potentially recover in a civil lawsuit depending on your state.
Misdiagnosis or Late Diagnosis of Breast Cancer
When a patient is diagnosed with breast cancer there are usually multiple factors involved. There could have been mammograms, further imaging, biopsies ordered, doctor's appointments, etc.
Many times these events happen over a course of time with different doctors involved. Each time the information is passed along there is a question of who was supposed to follow up with what.
Someone examining a delayed breast cancer diagnosis may need to compare the date of an abnormal finding with the date it was reviewed, communicated, and acted upon. That sequence can help establish whether a recommended follow-up was missed and whether the delay affected the patient's care.
You would also want to consider what type of imaging test was done. A radiologist may recommend additional imaging or identify a finding that needs prompt assessment. Each scenario would be different.
Criminal Recklessness
Depending on the statute being applied, criminal recklessness means the defendant knew about the risk they were creating and consciously ignored that risk. The amount of risk would need to meet the elements of the crime they are being charged with.
Compare a possible careless error with conduct that could help establish conscious disregard:
Not seeing an abnormal result when reviewing imaging tests could be considered careless or medical negligence
If the medical professional understood a substantial and unjustifiable risk and continued to not take action that could be considered evidence of criminal behavior
Again, the question is whether the person was aware of the risk they were creating. It is not necessary to show that they intended on harming the patient. Rather, the evidence must meet the offense's requirements for awareness of, and conscious disregard of, a substantial and unjustifiable risk.
There are differences between criminal negligence and recklessness as well. Some crimes only require you to show the person should have been aware of the risk they were creating.
Another thing to keep in mind is that "gross negligence" could be defined differently in a criminal context than what it means in a civil lawsuit.
Civil Lawsuits and Criminal Charges Can Both Arise
A medical malpractice lawsuit and criminal charges can arise from the same incident. However, they serve different purposes and follow different rules of proof.
The injured party (or someone on their behalf) can file a medical malpractice lawsuit against the medical provider that caused them harm. They would need to show that it is more likely than not that their injury was caused by the provider's actions. Usually the remedy in a medical malpractice lawsuit is monetary damages.
A prosecutor can file criminal charges against someone who meets the elements of a crime. They would need to prove beyond a reasonable doubt that the person committed the crime they are being charged with. The penalty could be jail time, probation, etc. depending on the crime.
It is possible that someone can sue for medical malpractice but the facts don't allow for criminal charges to be filed.
This is something to keep in mind if you feel like a loved one's death or injury was caused by a medical provider. The severity of an injury alone does not show that the provider committed a crime.
Information That Can Help Determine if Someone Acted Recklessly
As you can see, you will need different pieces of information to determine if someone failed to meet the standard of care and what they knew at the time they provided (or didn't provide) care.
Some things you may want to obtain if you suspect your injury was due to a misdiagnosis:
Any imaging tests and what the results stated
When those results came in, who viewed them and when
Any referrals that were made, doctor visits, notes, etc.
Any documentation that states the doctor knew something was wrong
An independent medical review can help assess the standard of care and whether the delay caused harm
You may find out from a chart that a doctor opened the test result. This may lead you to believe that they knew, however, that is not always the case.
As you can see there are many instances where a test result may not be looked at or acted upon in a timely fashion. It could have been one person that missed it or it could have been a system wide problem.
CRICO's June 2025 analysis of Candello, its national medical professional liability claims database, found diagnostic errors in approximately 20% of cases asserted from 2015 through 2024.
Keep in mind, these are just medical malpractice claims from one company's database. It does not represent the percentage of people who experienced a diagnosis error or if any criminal behavior took place.
Bottom line, gather as much information as you can before trying to draw conclusions on what someone knew or did not know.
Next Steps
If you believe you may have been misdiagnosed or diagnosed with an illness later than you should have been, obtain all of your records from your imaging facility, doctor's office, hospital, etc.
Have another medical professional review your records and give their opinion on the standard of care. Would they have acted on that information sooner? These are all questions that will come into play with your medical malpractice case.
Consult with a medical malpractice attorney, to see what your options may be. If you believe a crime was committed, you can always bring that information to the police as well.
Make sure to keep any letters, notes, or other documents that you may have.