12 Jan, 2023

Can Parents File an RSV Misdiagnosis Lawsuit?

Author Todd A. Strong
stethoscope, needle shape and medicine with the word Misdiagnosis

If your child has contracted RSV, and your treating doctor or physician failed to get the necessary diagnostic tests done to diagnose it timeously, the doctor may be considered negligent, and thus to have breached a duty of care.

stethoscope, needle shape and medicine with the word Misdiagnosis

If your child has been misdiagnosed with another illness when he or she had RSV, you may be able to bring an RSV misdiagnosis lawsuit. Respiratory Syncytial Virus (RSV) is a contagious virus that impacts the ability of the body to function properly. In severe cases, respiratory problems can lead to brain damage and death. RSV misdiagnosis can lead to serious health concerns. 

What Is RSV?

RSV is a common acute respiratory infection. It targets the lungs and small breathing passages. RSV is common, and most children by age 2 have been infected with the virus. In mild cases, the symptoms mimic that of a mild cold. Early symptoms of RSV include:

  • A stuffy or runny nose
  • A sore throat
  • A decrease in appetite
  • Coughing and sneezing
  • A mild headache
  • A generally ill feeling

In young infants, signs that a child has RSV may be irritability, decreased activity, decreased appetite, and apnea.

RSV infection can also develop into severe illnesses, such as bronchiolitis, which is inflammation of the small airways in the lungs, and pneumonia, which is an infection of the lungs. Signs of a serious case include a severe cough, fever, wheezing, rapid breathing, difficulty breathing, or a bluish tinge to the skin due to a lack of oxygen.

After RSV exposure, symptoms usually appear within 2 to 8 days. The illness typically lasts for about 3 to 7 days, and most people recover within two weeks. 

Those at greatest risk of developing severe RSV are infants and older adults. Babies at an increased risk include premature infants, as well as infants under 6 months old. Children born with heart or lung conditions, weakened immune systems, or neuromuscular disorders leading to difficulty swallowing or clearing mucus secretions may also be more likely to develop RSV. 

Adults who are most at risk are those over 65 years old or those with congestive heart failure, asthma, or chronic obstructive pulmonary disease.

In the United States, among children younger than 5, RSV leads to around 2.1 million outpatient visits each year. It also leads to approximately 58,000 to 80,000 hospitalizations for children younger than 5 years, and 60,000 to 160,000 hospitalizations among adults 65 years old and over. RSV causes 100 to 300 deaths annually in children under 5 years old, and 6,000 to 10,000 deaths in adults who are 65 years and older.

Why Is RSV Often Misdiagnosed?

The symptoms of RSV are non-specific and overlap with other respiratory infections, as does the seasonal prevalence. Therefore, it cannot be diagnosed by symptoms alone. The only way to effectively diagnose RSV is to run tests. These tests can be done using a swab from the nose or throat, or by running blood tests.

In performing a medical diagnosis, a doctor will usually begin by asking the patient a few questions regarding symptoms. In respiratory illnesses, typical symptoms include sneezing or coughing, runny nose, congestion, sore throat, fever, chills, lack of energy, headache, body aches, diminished appetite, shortness of breath, and dizziness. 

A doctor will likely perform some basic procedures, including checking blood pressure and listening to the patient’s heart and breathing. The doctor might check the throat, ears, nose, or eyes of the patient. If the doctor feels that the case may be more serious, he or she may take a swab from the patient’s throat, or have blood drawn to run tests for a diagnosis.

The most common respiratory illnesses include rhinovirus, pneumonia, bronchitis, asthma, chronic Obstructive Pulmonary Disease (COPD), and mononucleosis.

Many respiratory infections exhibit seasonal prevalence. The RSV season coincides with the flu season. Influenza and RSV tend to peak during winter, and rhinoviruses, which frequently lead to the common cold and sinus infections, peak in the spring and fall. 

In younger children, the symptoms of RSV are similar to a common cold, and in older adults, it closely resembles the flu. There are some slight differences in symptoms, such as the flu having a more sudden onset than RSV and causing a higher fever. However, considering symptoms alone, it is nearly impossible to distinguish between RSV symptoms and influenza.

Other forms of respiratory infection are common, and RSV can only be differentiated from the others and effectively diagnosed by running tests. Because of this, doctors are often less likely to suspect RSV and therefore misdiagnose it, or delay running tests to obtain a diagnosis.

Dangers of a Delayed RSV Diagnosis

Studies show that delayed diagnosis of RSV leads to more hospital admissions and longer durations of hospitalization.

RSV can lead to inflammation of the small airways in the lungs and infection of the lungs. Adults have larger airways, which can more easily accommodate the swelling in the airways. Young children have smaller airways, so swelling can be more serious and lead to complications. 

Out of every 100 children younger than 6 months who contract RSV, 1 to 2 require hospitalization. If hospitalized, they may need oxygen, IV fluids if they are unable to eat or drink, and possibly even mechanical ventilation if they are unable to breathe properly.

Most people who receive this care in the hospital recover and can be discharged within a few days. However, in severe cases, since RSV restricts a patient’s ability to receive oxygen, it can lead to respiratory failure or cardiac arrest. These and other secondary effects of RSV often result in the death of the patient. Even if death does not occur, in such serious cases, a patient may suffer a traumatic brain injury from RSV due to restricted oxygen.

If RSV is not diagnosed promptly, a child has a greater risk of requiring hospitalization, and a greater chance of suffering further complications. In some cases, RSV can even lead to the death of the patient.

Who Can File an RSV Misdiagnosis Lawsuit?

Like other personal injury cases, an RSV misdiagnosis lawsuit can be brought by the injured party against those liable. In the case of minors, parents or guardians may initiate such legal filings on their behalf. If your child has passed away because of a misdiagnosis, you may be able to file a lawsuit for wrongful death caused by RSV misdiagnosis. 

A misdiagnosis lawsuit, which can include a wrongful death lawsuit, falls under medical negligence. Therefore, to be successful in a lawsuit, you will need to demonstrate the four elements required to prove medical negligence. These are:

A Duty by the Doctor to Provide Care to the Patient

This duty exists if there is a valid doctor-patient relationship. You cannot sue a private hospital for malpractice if you did not receive treatment there, or sue a doctor who was not treating you. 

Therefore, you need to prove that there was a legitimate relationship between yourself and the doctor who treated you or your child. This can be proved using the medical records from the doctor or physician who was treating you or your child.

The Doctor Breached the Duty of Care

A breach of this duty of care exists if it can be proven that your doctor was negligent. To prove negligence, you will need to prove that your doctor did not give the standard of care that a reasonable, similar doctor would provide to you in the same circumstances.

Negligence can arise when a doctor misdiagnoses a patient, doesn’t follow the correct procedure, overlooks an essential step in treatment, or fails to carry out required treatment timeously or to a reasonable standard of care.

A doctor may be acting negligently in misdiagnosing a patient if he or she:

  • Doesn’t order necessary diagnostic tests before giving a diagnosis
  • Fails to follow up with the patient to ensure that the patient is recovering
  • Rushes the examination or ignores the patient’s symptoms and complaints
  • Fails to consider the risks of the patient's existing medical conditions

If your child has contracted RSV, and your treating doctor or physician failed to get the necessary diagnostic tests done to diagnose it timeously, the doctor may be considered negligent, and thus to have breached a duty of care.

Injury Caused by the Breach

A breach of the standard of care required by a doctor is legally meaningless unless it causes injury to the patient. To prove this element, you will need to show a direct link between the misconduct and the injury suffered. 

If your child has suffered injury or passed away due to a late or misdiagnosis of RSV, then there will be a link between the conduct, which is the missed or late diagnosis, and harm suffered, which is the injury or death.


The final element is damages, which is the monetary compensation you are seeking. The compensation you can request may include damages for things such as wrongful death, pain, and suffering, and extra medical expenses as a result of medical malpractice.

Medical malpractice cases rarely reach trial. Your medical malpractice lawyer may assist you in negotiating an RSV misdiagnosis lawsuit settlement through negotiations with the at-fault parties or their insurance carriers.

About The Author

Photo of Todd A. Strong
Illinois workers’ compensation and personal injury lawyer Todd A. Strong is the founder of Strong Law Offices in Peoria, Illinois. Todd brings considerable legal knowledge, experience, and skill to the table to ensure injured victims throughout the state are treated with respect, dignity, and fairness.