Claims involving outpatient care increasing: MDs often unaware of actual legal risks
Failure to diagnose is common allegation
Did you know that primary care physicians are at pretty much the same level of risk for malpractice suits as neurosurgeons, orthopedists, and obstetric-gynecologists?" When Luke Sato, MD, asks physicians this question, "they all look surprised and say, I wouldn’t have known that.’"
The number of paid malpractice claims reported in 2009 to the National Practitioner Data Bank for events in the outpatient setting was similar to the number in the inpatient setting.1
One issue contributing to malpractice claims is that primary care physicians are put into the "quarterback" position of coordinating all of the care a patient is receiving, says Sato, assistant professor of medicine at Harvard Medical School in Boston and senior vice president and chief medical officer at CRICO, the Cambridge-MA based patient safety and medical professional liability company serving the Harvard medical community.
"The other element that people may not appreciate from a liability perspective is that the primary care physicians are responsible for anything in the medical record — any abnormal test or study," says Sato. "You can imagine the potential risk there."
CRICO has seen a trend of missed lung cancer claims arising from failure to follow up on incidental findings, missed prostate cancer claims involving failure to follow up on an abnormal test result, and missed colorectal cancer claims from failure to address colorectal bleeding. "Physicians need to be on the alert with patients who come in with symptoms of lumps or rectal bleeding," says Sato.
Diagnostic errors are the most common allegations in claims involving outpatient care, in contrast to claims involving inpatient care that typically involve procedure-related errors, says Tara F. Bishop, MD, MPH, assistant professor of public health and medicine at Weill Cornell Medical College. Outpatient malpractice claims "include missed or delayed diagnoses, often for cancer or heart disease," says Bishop.
Nan Gallagher-Auferio, Esq., an attorney at Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, is seeing increasing numbers of malpractice claims and state medical board investigations stemming from adverse events in ambulatory care settings. Many involve diagnostic errors. "We are hearing about more and more patients who are dying from preventable medical errors in the ambulatory setting," she says.
Patients as safety nets
There is a growing trend of misdiagnoses of heart attacks at urgent care centers, reports Gallagher-Auferio.
"More and more internists and advanced practice nurses who are manning these urgent care centers aren’t treating the presenting symptoms with the level of urgency that the facility marquis advertises to passers-by," she says.
Gallagher-Auferio has seen several claims involving the misdiagnosis of myocardial infarctions at urgent care centers. "Failing to appreciate subtle EKG changes and elevated cardiac enzymes is quite common," she says.
Physicians often try to protect themselves legally by discharging patients with the instruction, "If your symptoms don’t improve in X days, come back or go to the ER," says Gallagher-Auferio, "but by the time the patient knows any better, it’s far too late."
EMRs fall short
Most electronic medical records (EMRs) fall short when it comes to reducing malpractice risks, Sato says. An EMR could flag abnormal findings that the physicians needs to act on without the physician having to look for these specifically, for example, but most EMRs aren’t set up to do so.
"That would be tremendously help in mitigating risk, but vendors are not thinking about it this way," says Sato. Patients themselves also can act as safety nets, if they are able to access test results from patient portals set up by physician offices.
"We highly encourage any means to engage the patient," says Sato. "If you can avoid missing the expectation of patients, you are definitely that much farther ahead of mitigating any malpractice claims down the road."
CRICO’s recent analysis of malpractice claims involving EMRs identified two factors contributing to claims involving missed or delayed diagnosis:
• failure to order the appropriate lab test;
• failure to "close the loop" once a test is done or a referral is made.
"You can address these things by creating protocols, but we have found that there are gaps within the EMRs themselves," says Sato.
CRICO identified these steps as a best practice: A referral is ordered, an appointment is made to schedule the referral, and the physician is alerted if the patient misses or cancels the appointment.
Most EMRs omit the last step, says Sato. "There needs to be some mechanism to inform the referring doctor that the patient didn’t make it to the appointment," he says.
Is claim defensible?
When considering whether a malpractice claim is defensible, a significant bad outcome such as death or major disability might matter more than the type of error that occurred.
"In general, outcomes matter a lot," says Tara F. Bishop, MD, MPH, assistant professor of public health and medicine at Weill Cornell Medical College in New York, NY. Bishop adds that for most diagnostic errors, negligence is very hard to ascertain.
"Most malpractice decisions are based on opinion," she explains. "Diagnosis is a particular area where experts might disagree."
For example, it might be difficult to determine whether diagnostic error caused one doctor to correctly diagnose a condition while another misdiagnosed the same condition. Bishop also notes that not all errors rise to the level of medical malpractice. "If there was a [diagnostic] error, was it a negligent error?" she asks.
Bishop says that standardized systems might help deter lawsuits. For example, an office could standardize the way it informs patients of lab results so that no patient falls through the cracks.
"There is no work that shows that doing more tests or practicing defensively lowers malpractice risk, although this is a wide perception by doctors," adds Bishop.
- Bishop TF, Ryan AM, Casalino LP. Paid malpractice claims for adverse events in inpatient and outpatient setting. JAMA 2011; 305(23):2427-2431.
Tara F. Bishop, MD, MPH, Assistant Professor of Public Health & Medicine, Weill Cornell Medical College, New York, NY. Phone: (212) 746-2670. Email:
- Nan Gallagher-Auferio, Esq., Kern Augustine Conroy & Schoppmann, Bridgewater, NJ. Phone: (800) 445-0954. Fax: (800) 941-8287. Email: Ngallagher@drlaw.com.
- Luke Sato, MD, Senior Vice President, Chief Medical Officer, and Assistant Clinical Professor of Medicine, Harvard Medical School, Boston. Phone: (617) 679-1549. Fax: (617) 495-9711. Email: LSato@rmf.harvard.edu.
- CRICO has produced a video on how electronic medical records can be embedded into the physician workflow in a manner that would improve health care, with a dramatization based on real malpractice cases. To view the video, go to www.rmf.harvard.edu/EMR. F