EXECUTIVE SUMMARY

Appendicitis, cardiac or cardiorespiratory arrest, and disorder of male genital organs were the most common medical conditions triggering malpractice lawsuits involving pediatric ED patients, according to the authors of a recent analysis. Other findings:

  • Not all claims resulted in payouts due to factors such as difficulty making diagnoses at the time of the ED visit;
  • Failure to diagnose meningitis is alleged less often;
  • Error in diagnosis remains the most common medical factor in ED claims.

A recent analysis of 728 closed claims in pediatric emergency care settings reveals how both the specific medical conditions triggering lawsuits and the overall malpractice climate have changed.

“We wanted to report an updated assessment of medical professional liability information about pediatric patients treated in urgent care or ED settings,” says Mark Zonfrillo, MD, MSCE, the study’s senior author.

Researchers conducted a retrospective review of 15 years’ worth of closed malpractice claims that involved children in urgent care centers or in the ED. Investigators gathered this information from the Data Sharing Project of the Physician Insurers Association of America, now called the Medical Professional Liability Association (MPLA). The MPLA is an industry trade association representing medical professional liability insurers.

Of 728 claims reviewed, money was paid to the claimant in 30% of cases, with an average payout of $319,513.1 In contrast, a 2005 analysis of more than 2,200 pediatric claims collected between 1985 and 2000 showed that the most common diagnoses were appendicitis, arm fracture, meningitis, and testicular torsion.2

The 2018 study revealed that the most common medical conditions involved in malpractice lawsuits were appendicitis, cardiac or cardiorespiratory arrest, and disorder of the male genital organs.

“It is important for emergency medicine providers to be aware of the most common medical conditions and factors involved in pediatric emergency care malpractice suits,” says Zonfrillo, an associate professor of emergency medicine and pediatrics at Hasbro Children’s Hospital and the Alpert Medical School of Brown University.

Informing ED providers of the risks contributing to malpractice claims “is critical to mitigating certain adverse events that lead to such lawsuits,” says P. Divya Parikh, vice president of research and education for the MPLA.

Few researchers have analyzed malpractice claims involving pediatric patients in the ED setting specifically. Using the Data Sharing Project, Zonfrillo and colleagues set out to see how the medical liability climate has evolved since 2005. Some key findings:

  • Diagnostic errors (41%) still most common medical factor in ED claims.

“That makes sense. In the ED, we make diagnoses; if something’s going to go wrong, it’s mostly diagnoses-related,” says Steven Selbst, MD, an investigator who participated in both the 2005 and 2018 studies. “If you are going to be fair to the medical team, you have to recognize that another diagnosis made down the road doesn’t mean it was missed in the ED.”

Often it simply means that emergency physicians (EPs) could not make the diagnosis because it was too early in the course of the illness.

According to Selbst, the best defense in such a case is showing that the EP carefully examined the patient and performed the appropriate studies but still could not make the diagnosis If all that is well-documented in the ED chart, says Selbst, “you’re going to have a very good chance of ending up in that category where there is no payout to the plaintiff.”

  • Appendicitis remains a common condition in malpractice lawsuits.

“It’s a difficult diagnosis to make,” says Selbst, an EP at Nemours/Alfred I. duPont Hospital for Children in Wilmington, DE, and professor of pediatrics at Sidney Kimmel Medical College. “Failure to make this diagnosis doesn’t always equate to poor management.”

Appendicitis cases evolve over time. After expert review of the ED chart, plaintiff attorneys sometimes realize that it was not possible to make the diagnosis at the time of the ED visit; some pursue the claim anyway. At least some of the closed claims involving appendicitis likely resulted in no payout for this reason, Selbst adds.

  • Failure to diagnose fever and meningitis is alleged less often.

“It’s moved further down on the list,” says Selbst, adding that the decrease in litigation probably is due to vaccines that have resulted in fewer meningitis cases.

  • Claims involving fractures are less common.

“It is difficult to determine why that was found,” Selbst notes. “It’s possible that EDs have gotten better at management of fractures.”

  • Cardiac or cardiorespiratory arrest is now the most common medical condition resulting in a claim.

These conditions almost always result in serious injury to the child or death of the child. “Thus, these cases are likely to result in litigation,” Selbst notes.

Zonfrillo says it is unlikely there are more cardiac-related conditions. “It is more likely that there are more cases of patients who arrest and either have long-term harm or die,” he explains. “We know that the most common cause of cardiac arrest is respiratory etiologies.”

  • Improper diagnosis of the male genital organs remains a common allegation in malpractice claims.

“We still have a fairly high number of these cases in older children. That was a little disappointing,” Selbst laments. These lawsuits likely involve failure to promptly treat cases of testicular torsion. This was a finding in the 2005 study, too.

“The hope is that people being more aware of this would make them more careful about examining a boy with abdominal pain or testicular complaints,” Selbst says. Over the past few years, he adds, there has been growing focus on the need to promptly diagnose testicular torsion in the ED. “People are recognizing that it is a common diagnosis in malpractice lawsuits, and we have to pay more attention to it.”

A protocol for testicular torsion was implemented recently at Nemours/Alfred I. duPont Hospital for Children.

“The patient with scrotal pain is seen almost immediately. The attending emergency physician is called out to triage whenever a child comes in with a testicular complaint,” Selbst explains. Studies are ordered promptly, and a urologist is consulted simultaneously when there is a strong suspicion of torsion. Part of the reason for the new protocol is a recognition that malpractice lawsuits may occur if there is a delay in management in the ED.

“The goal is to get a doctor to put eyes on the swollen testicle, begin an immediate diagnosis, and call in the urologist as soon as possible so we can cut down on the delays — and, hopefully, malpractice lawsuits,” Selbst adds.

Researchers were curious if the malpractice climate had changed since the release of the 2005 study. “It is difficult to say whether or not it changed for the better or the worse; it just has changed,” Zonfrillo notes. Claims that involved delay in hospital admission or failure to admit to the hospital (the eighth leading chief medical factor) resulted in the highest average indemnity. Of 728 closed claims, 220 involved a patient death. However, claims that concerned major permanent injury more often resulted in a payment.

The results of the 2018 study make it clear that the odds still are very much in the EP’s favor when it comes to malpractice lawsuits. “Almost all are settled out of court. When it does go to court, it’s very rare that there’s a payout to the plaintiff,” Selbst reports.

In the 2005 study, malpractice claims went to court 7% of the time. The authors of the 2018 study found a similar pattern, with cases going to court 8% of the time. Of the 57 cases that went to trial, verdicts favored the physician in 47. However, that does not mean it is going to be easy for the EP defendant. “It’s unlikely the plaintiff is going to get money out of the lawsuit. But it’s emotionally draining to be sued,” Selbst says.

Understanding more about the causes of malpractice claims could help EPs avoid future litigation. “Knowing the epidemiology might not directly impact your management of patients, but, hopefully, it does help in your thinking,” Selbst offers.

REFERENCES

  1. Glerum KM, Selbst SM, Parikh PD, Zonfrillo MR. Pediatric malpractice claims in the emergency department and urgent care settings from 2001 to 2015. Pediatr Emerg Care 2018; Sep 11. doi: 10.1097/PEC.0000000000001602. [Epub ahead of print].
  2. Selbst SM, Friedman MJ, Singh SB. Epidemiology and etiology of malpractice lawsuits involving children in US emergency departments and urgent care centers. Pediatr Emerg Care 2005;21:165-169.