Closed Claim Malpractice Data Reveal Actual Legal Risks for ED Providers
Many emergency physicians (EPs) worry about malpractice lawsuits, but without much data on the actual risks they face in clinical practice.
“It is important for emergency medicine providers to be aware of the most common medical conditions and factors involved in malpractice suits. It is important to understand what the current landscape is,” says Mark Zonfrillo, MD, MSCE, an associate professor of emergency medicine and pediatrics at Hasbro Children’s Hospital and the Alpert Medical School of Brown University in Providence, RI.
Zonfrillo and colleagues analyzed 6,779 closed claims for adults in the ED and urgent care center settings logged between 2001 and 2015.1 “We wanted to have a nice, big snapshot in time, and just get an idea of where we see the top risks in emergency medicine and what we can do to hopefully mitigate it,” says P. Divya Parikh, MPH, CAE, study co-author and vice president of research and risk management for MPL Association, a Rockville, MD-based industry trade association representing medical professional liability insurers.
Error in diagnosis was the most frequently cited medical error in the claims (36.4%). The top five diagnoses in ED claims were: cardiac or cardiorespiratory arrest, acute myocardial infarction, aortic aneurysm, pulmonary embolism, and appendicitis. “Those are all diagnoses that we know can be very challenging in the ED,” Zonfrillo says. “I don’t think that the list of diagnoses will come as a great surprise to anybody. But it reinforces what people may have already assumed.” Some specifics:
- Aortic aneurysm claims generated the highest average indemnity ($369,872);
- Acute myocardial infarction had the highest ratio of paid-to-closed claims;
- Cardiac or cardiorespiratory arrest was the most common medical condition cited in claims with a payout.
All these findings would be expected for the ED. Yet despite years of risk management and patient safety initiatives targeting these conditions, EDs still face claims with similar fact patterns. “Something we are really looking at is why we are still seeing these issues come up in claims,” Parikh says.
Data on payouts and settlements do not reveal what is fueling these lawsuits. Knowing that cardiac arrest is a common diagnosis in malpractice claims does not tell ED providers how to avoid litigation if they miss it. “It doesn’t give you a lot of information to guide your care. But it gives you an idea of what’s out there,” Zonfrillo says.
Zonfrillo’s primary area of research is studying the epidemiology of injuries in children. He says the same fact-driven approach applies to ED malpractice risks. “Understanding the facts and the prevalence is a good first step,” he says.
That includes medical students. Medical education is about more than just evidence-based medicine and procedural competency. “There are a lot of ancillary topics that should also be reviewed from time to time. One of those is understanding medical liability,” Zonfrillo explains.
It is particularly important in the ED, where providers lack longstanding relationships with patients, and sometimes lack medical history. Many people present with signs and symptoms that can either be benign or immediately life-threatening. “Data on the types of cases that are highest risk in terms of malpractice can inform efforts to educate ED providers or provide clinical decision support,” Zonfrillo says.
What is different about the ED is “it’s everybody under the sun. You get such a broad spectrum of patients and diseases,” Parikh observes.
Even with the best intentions and good care, ED providers are likely to be sued at one point during their careers.2,3 “That you might see a lawsuit just because of the exposure of being in a certain specialty is kind of frightening. It’s not something you are taught in med school,” Parikh says.
Zonfrillo, Parikh, and colleagues categorized claims according to injury severity, ranging from insignificant (emotional injury only) to death.1 Of about 2,600 claims resulting in a patient’s death, 770 resulted in a payout. The next highest category was minor temporary injury. “Those are also an area to target and delve into deeper,” Parikh says. “They may not be giant in terms of indemnity payments or defense costs, but there is still an opportunity to reduce those.”
The central questions are “How do we take these findings and really mitigate risk further? What more can we do?” Parikh asks.
Claims are not just about clinical mistakes. Lawsuits often center around miscommunication (e.g., failure to explain the treatment plan or patient expectations that were not met). “Looking at what type of claims we are seeing presents an opportunity to see where the risks are, especially if there are new medical conditions coming into the mix,” Parikh says.
Things change over time. “You want to see which conditions remain there over decades. You also want to see which ones are appearing,” Parikh notes.
Medical liability claims data “can provide direction for where EDs need to focus attention,” Parikh says.
At the end of the day, the most legally protective thing EPs can do is to meet the standard of care to all patients. Unfortunately, there are obstacles. “There are very busy EDs and very sick patients. Sometimes, there are system issues,” Zonfrillo says.
Quality assurance initiatives and clinical practice guidelines are important tools.
“These can help to consistently meet the standard of care for all patients who present to the ED,” Zonfrillo says. “That should always be on the minds of the providers in the ED.” Other key findings on the outcome of closed ED claims:
- 22.8% of the claims resulted in a settlement, with an average payout of $297,709 and an average defense cost of $55,260.
- Few (7.6%) of the claims went to trial. Of that group, the defense prevailed 92.6% of the time. For those cases, the average defense fee was $111,446.
- Of the small group of claims (just 38 cases) in which the plaintiff prevailed at trial, average indemnity was $816,909. The average defense cost for those cases was $159,716.
Even though plaintiff verdicts in ED claims are rare, high payouts command outsized attention. “A lot of effort is spent targeting this small bucket of claims, because you don’t want those large payout situations,” Parikh says.
Interestingly, 65.9% were dropped, withdrawn, or dismissed. Most claims in this group were found to have no merit, meaning the EP met the standard of care.
“The claims really have very little to do with medical care delivery. It raises the question of why we see so many claims like that,” Parikh says.
Even though those claims did not result in any payout, there still was a financial cost. Average defense fees totaled $25,996 for these cases. There also is the issue of emotional trauma.
“When a claim is filed, I don’t think there is a general understanding of how traumatic and demoralizing that can be to a caregiver,” Parikh says. “It really hits them in a personal and professional way.”
Even if the claim is dismissed, “there is impact from all of those claims. These aren’t insignificant,” Parikh adds.
The finding suggests some people are bringing claims because they are unhappy with the ED outcome, even though nothing wrong happened. “When something that shouldn’t have happened did happen, that patient needs to have support,” Parikh says.
Improving the patient experience in that type of situation could help prevent malpractice claims. One example is early communication and resolution approaches to adverse events. Another is meeting with patients or family before a claim is filed.
Ideally, this occurs whenever ED providers recognize something unexpected happened. “By intervening early, EDs can get ahead of the problem before there is a claim,” Parikh says.
- Wong KE, Parikh PD, Miller KC, Zonfrillo MR. Emergency department and urgent care medical malpractice claims 2001-15. West J Emerg Med 2021;22:333-338.
- Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med 2011;365:629-636.
- Kane CK. Policy research perspectives. Medical liability claim frequency: A 2007-2008 snapshot of physicians. 2010.
Researchers analyzed 6,779 closed claims for adults in the ED and urgent care center settings logged between 2001 and 2015. The top five diagnoses in ED claims were: cardiac or cardiorespiratory arrest, acute myocardial infarction, aortic aneurysm, pulmonary embolism, and appendicitis.
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