Misdiagnoses Blamed in Half of Med-Mal Payouts

Medical liability expert says breakdowns in cognitive and process factors often aren't captured in adverse events reports, and only come to light for physicians when they're named in a lawsuit.  

Misdiagnoses are the root cause of one-third of all medical liability claims and account for nearly half of all indemnity payments, according to a new report by Coverys.

The report from the medical liability insurer analyzed more than 10,500 closed medical liability claims from 2013-2017 and found that:

• Diagnosis-related events are the single-largest root cause of liability claims. The 3,466 closed claims with diagnosis-related allegations from 2013-2017 account for 33% of all claims and 47% of indemnity payments.
   
• 35% of diagnostic errors occur in non-emergency department outpatient settings, such as physicians’ offices.
   
• 33% of diagnosis-related claims allege the decision-making breakdown happened as a result of a failure during the patient evaluation.
   
• The four phases of testing -- ordering, performance, receipt/transmittal, and interpretation―account for 52% of diagnosis-related claims.
   
• Among diagnostic failure claims, the largest number of cases involve a missed or delayed diagnosis of cancer, especially breast, lung, colorectal and prostate cancers.
   
• Of the claims that cited an EHR issue, 58% had an injury severity considered high―a category that includes death.

Study author Robert Hanscom, vice president of business analytics at Coverys, spoke with HealthLeaders Media about the findings. The following is a lighted edited transcript.

HLM: What leapt out at you with your findings?

Hanscom: Clearly we don’t know enough about diagnostic error, which is often hidden from the view of physicians and other providers.

Generally, when we see them in malpractice they are missed and delayed cancer diagnoses that would miss any adverse event reporting system, which is often the way that providers learn about mistakes. These are non-events that actually take providers by surprise sometime later down the road.

There is not a lot of intelligence out there, in terms of helping physicians understand where their vulnerabilities are with respect to these errors.

HLM: So, the first time providers learn about these misdiagnoses is when they’re sued?

Hanscom: Absolutely! If it's a missed or delayed cancer diagnosis allegation, it may take them completely by surprise. It may happen that their patient may have gone elsewhere, for example, because the symptoms hadn't gone away, or they wanted to try a new physician. Ultimately, when the actual diagnosis was made, and sometimes it is not made until they are advanced in the progression of the cancer, the physician may get a notice of a suit for a situation that he or she may have very little recollection about. This happens quite frequently.

HLM: Is there a common theme with these missed diagnoses?

Hanscom: There are both process and cognitive factors that are in play here. Those first two steps are where a huge amount of our malpractice activity comes from.

First, we know that cognitive variability is a big problem. Some physicians are really good diagnosticians. They get their rule outs. They get their differentials. But, that has become an artifact of old time medicine when doctors had lots of time to do it. Much of today's world cheats the doctor on their ability to do what they were trained to do, so the cognitive ability is significant.

Second, getting that history and physical and fully evaluating the patient is a process issue, because there needs to be that full evaluation and the time taken to do that. If they are looking at the patient's clinical history, they are making sure that there is a full capture of what is going on with that patient on every visit, which can be done efficiently, that will cut into that cognitive variability. 

HLM: Talk about the importance of documentation.

Hanscom: There are two facets. From the legal perspective, if we have to defend cases at a later point, documentation means everything. If it is not documented, it’s very difficult to convince all the people who adjudicate these cases that the care happened in the way the physician is remembering it and wants a jury or some other arbiter to believe it happened. Documentation should be a habit that needs to occur.

More importantly, documentation helps subsequent providers completely understand what was decided and what was done. That is critical to continuity of care, and making sure that there is not a lapse in the care and the decision-making that needs to continually be made, that of course the treatment plan.

HLM: You also encourage documenting coverage denials. 

Hanscom: Document the denial. If we can show a jury later that you considered it, you tried to do it, but there was a denial and you had to take an alternate path, that is important to make sure that the full story is being told.

HLM: Does fear of malpractice lead to unnecessary testing?

Hanscom: Getting those differentials does not constitute unnecessary testing. That is how physicians were trained in medical school and they need to be allowed to do it. There needs to be a fine balance. We recognize that there is pressure on costs and doctors not to do more than they have to. That doesn't take away from the fact that doctors need to make differential diagnoses to ensure that the true diagnosis is not being missed.

We see that in many cases the patient will present with certain symptoms and the doctor will say 'I think I know what this is,' and start to run with it. But, if they don't get differentials, if they don't ask what else could it be, then not only does that doctor get anchored in a diagnosis that has a degree of uncertainty, but other providers behind him get anchored as well.

HLM: What other actions could reduce liability? 

Hanscom: Pay attention to the process categories. That is where resources need to be invested to make sure that good diagnosticians are not defeated. And, there needs to be attention paid to decision support that helps providers make sure that they’re considering everything that might be possible.

We have often seen that good diagnosticians get defeated by bad processes. More often we see both; physicians who are not as good with diagnoses and bad processes as well. That is the perfect storm.

It is also true with managing referrals. We see many cases where patients will refer to a specialist but the patient kind of drifted away from the primary care provider. There wasn’t a real process in place to make sure that the patient was looping back to the primary care provider.

Obviously, test result management is big. If test results are getting lost and the ordering provider is not getting the information they need to make that diagnosis, which is another major process issue.

HLM: Anything else?

Hanscom: I’ve looked at this data for 20 years and these data points have not moved very much. We really have to start a fire here with people thinking creatively and innovatively about how to put some very serious prevention to these tragic cases. These are high-severity injury outcomes. The time for innovation is really now. We need to think differently about how to help providers work their way through these complex scenarios.