Medical Malpractice Case of the Month
July 1998

Be Prepared for Newest Malpractice Epidemic

Try your hand at answering the following five questions:

1. What is the second most common medical malpractice allegation against hospitals?

2.What malpractice allegation is most likely to result in an indemnity payment?

3. What is the leading malpractice allegation in the emergency department, radiology department, and pathology service?

4. What is the number one cause of lawsuits against the medical specialties of cardiology, emergency medicine, gastroenterology, internal medicine, pathology, pediatrics, and radiology?

5. What malpractice allegation category has more than doubled in claim seveirty since 1985?

The answers to all five questions is diagnostic errors. If you didn't know that, at least your in good company. A great many health care risk managers are amazed to find that diagnostic errors are responsible for such huge proportion of malpractice lawsuits.

Skeptical? Take a look at the specific answers to those questions:

1. About 20% of lawsuits against hospitals are for diagnostic errors (including failure to monitor and diagnostic delays), making this the second cause of loss, according to closed claim reports from the U.S. General Accounting Office (GAO), the Ohio Hospital Association, and St. Paul (MN) Insurance Company.

2. Lawsuits for diagnostic errors result in indemnity payments 24.1% of the time, making this the hardest allegations to defend, according to the GAO.

3. Failure to diagnose accounts for about half of all ED claims, two-fifths of radiology claims, and about three-fifths of pathology claims.

4. Failure to diagnose is the No. 1 allegation in these physician specialties; cardiology (23.4% of claims), emergency medicine (48.4%), gastroenterology (29.2%), internal medicine (27.5%), pathology (58.5%), pediatrics (30.9%), and radiology (41.6%), according to the Physicians Insurance Association of America (PIAA).

5. The average indemnity payment for failure to diagnose has increased from $85,778 in 1985 to $221,704 in 1996, a 258% increase over a 12-year period, according to the PIAA.

Diagnostic errors represent a growing threat to quality of care. A growing number of hospitals are facing their first million-dollar lawsuit for failure to diagnose. In the past risk managers were reluctant to target this category of claims because they were reluctant to tread on what they perceived as the physicians' territory. That must change, or hospitals will face devastating loses.

As if those data aren't enough cause for concern, the picture is likely to get worse for hospitals in the near future. Diagnostic errors are likely to spark even more lawsuits as hospitals expand their ambulatory services and snap up physician practices. Also, plaintiffs' attorneys always are on the lookout for deep pockets and are more successfully using the theory of vicarious liability to pin the blame on hospitals.

Troubling case studies

Here's an example that illustrates some of those distressing statistics: A woman with a prior history of pancreas problems came to the emergency department at 3:30 p.m. with high epigastric pain. Blood work was ordered stat. Her lipase was 2,200 and her amylase was 271. But the emergency department technician accidentally reversed the values, advising the doctor that the lipase was 271 and the anylase was 2,200. The doctow made a diagnosis of pancreatitis, ignoring the elavated CPK value of 296 and the Mb band of 38.6 ng. The patient died that night of myocardial infarction.

Like many malpractice lawsuits we see, the injury resulted from a breakdown in the system. The hospital had no computerized laboratory sytem, which could have prevented the snafu. The technician wasn't thinking, or maybe he was pulling a double shift. The doctor made an error known as "track thinking," being unduly swayed by the patient's prior history of pancreas problems, becoming prematurely committed to the diagnosis and conveniently ignoring the dangerous CPK and MB band values.

Here's another example involving an obsterical patient: A small hospital compensated for a shortage of area physicians by having the obstetrical nurses assume a major role in patient monitoring. A patient in her 36th week of pregnancy was admitted to labor and delivery. Electronic fetal monitoring revealed moderate abnormalities. In discussing her progress with the doctor, the nurses underplayed the abnormal tracings. When things started to go wrong, the nurses tried to cover up their mistake by misinforming the pediatrician about the low Apgar scores. The child later proved to be mentally retarded and partly blind.

Here again, there was enough fault to go around. The physicians were remiss in not being more involved in the patient's care. The nurses appeared more interested in preserving their clinical prerogatives than assuring quality of care. And the hospital administrators apparently condoned this tinderbox arrangement.

Mammography is another area of concern.

One area of concern for risk managers is the growing role of screening mammography for women in their 40s, a service often provided in hospitals. Mammography has a higher false positive for premenopausal women with dense breast tissue. A National Institutes on Health Consensus Development Panel concluded in January 1997 that "the data currently available do not warrant a universal recommendation for mammography for all women in the ir foties." Unfortunately, a group of Congressional activists overruled the NIH recommendation, pushing President Clinton to endorse mammography for women in their 40s. As a result, routine mammography for younger women is becoming the standard of care despite its documented problems, which will tend to increase failure-to-diagnose lawsuits for these women.

The fact that diagnostic error claims are the most difficult to defend argues that health care risk managers need to take a proactive approach. These are some of the actions you can take:

- Assure proper physician credentialing, especially among contract emergency department groups. In the past, credentialing in some hospitals was swayed too much by economic and political considerations. It is crucial to implement a strict and objective credentialing process, and the risk manager has a valid role in that process.

- Promote policies and procedures designed to reduce failure-to-diagnose claims. Especially important are procedures for telephone calls from patients and for emergency triage, nurses' roles in obstetrical monitoring, evaluations of patients on intravenous and parenteral medications, assessment of suicide risk, communication of abnormal radiological and laboratory results, and patient discharge instructions.

- Disseminate diagnostic protocols to physicians. In coordinating a broad-based effort to develop diagnostic protocols for breast cancer, colorectal cancer, and acute myocardial infarction over the past three years. I have found that physicains are receptive to practice guidlines if they have been involved in their development.

- Offer continuing education for physicians and nurses. As much as possible, seek continuing education that offers ptactical, real-world examples to the clinicians. The case study method is useful in illustrating common barriers that lead to diagnostic errrors, highlighting them and then asking the physicians to analyze on of their own diagnostic mistakes.

- Encourage good working relationships among the various hospital departments. For example, condultation requests should be as specific as possible. It's better to use "R/O arrhythmia" instead of "cardiac evaluation." If a serious abnormality is detected in a radiological or pathological study, the refering doctor should be advised by telephone. Nurses should not be reluctant to seed a physician's advice.

- Support ongoing quality improvement efforts. In addition to the improvement it can bring, a quality improvement program is an effective way to monitor the ongoing effects of your loss prevention efforts.

Through those steps, risk managers can take a proactive approach to reducing diagnostic errors and resulting malpractice lawsuits. But before any effective countermeasures can be employed, risk managers must realize the frequency of diagnostic errors and dispel the notion they are beyond the control of risk management. That may be the biggest challenge.

[Editors' note: Barlett is author of a new booklet, Diagnostic Errors: How Risk Managers Can Cope with the New Wave of Lawsuits. It's available for $24 from EBA Publications, P.O. Box 1404, Rockville, MD 20849. Telephone: (301) 670-1964.]

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