Meningitis has highest payout of failure-to-diagnose’ claims
Aggressive evaluation, careful documentation help prevent allegations against pediatrician
Errors in diagnosis remain the most common claim against pediatricians, with 40% of all actions falling into this category, says James Scibilia, MD, a Beaver Falls, PA-based pediatrician and member of the American Academy of Pediatrics’ Committee on Medical Liability and Risk Management.
"[Diagnostic errors] also represent almost 50% of all claims paid with an average indemnity over $630,000 in 2011," he adds.
Of 404 claims against pediatricians analyzed in a 2013 study, 83 resulted in an indemnity payment and 15 resulted in a payment exceeding $1 million. The annual percentage of pediatricians facing a malpractice claim was 3.1%, compared with 7.4% among other physicians.1
Scibilia notes that the five most common conditions in pediatric "failure-to-diagnose" cases are meningitis (38%), appendicitis (20%), congenital anomalies (15%), pneumonia (13%), and brain-damaged infant (12%). Meningitis has the highest average payout: more than $450,000. "Aggressively evaluate patients you believe may have one of these conditions," advises Scibilia. "Careful documentation of your process of these evaluations will be important if an action is brought against you."
One malpractice suit was filed after an 8-year-old’s appendix ruptured when he was misdiagnosed with viral gastroenteritis. The claim alleged that earlier diagnosis and surgery would have prevented the resulting peritonitis. Jonathan M. Fanaroff, MD, JD, says, "As a result, the suit alleges, the boy had to have multiple surgeries and suffered permanent injury with loss of a portion of his intestines." Fanaroff is associate professor of pediatrics at Case Western Reserve University School of Medicine and co-director of the Neonatal Intensive Care Unit at Rainbow Babies & Children’s Hospital, both in Cleveland, OH.
Another lawsuit involved a physician who initially diagnosed bacterial meningitis as an ear infection. "The suit alleges that the delay in performance of a spinal tap and timely initiation of intravenous antibiotics would have prevented the 7-year-old patient from becoming blind," says Fanaroff.
Payments significantly higher
Average indemnity for pediatric malpractice is significantly higher than for adults. For example, from 2004-2005, the average child-related malpractice payment was significantly greater than an adult-related malpractice payment ($422,000 vs $247,000).2
"Looking at meningitis data, it is clear that there are some trends in that group," says Scibilia. Many patients did not have typical signs and symptoms of meningitis, and 25% had no fever.
"Generally these children are very young, with a mean age of only two years," he adds. "Frequently, there was an absence of mental status changes or neck stiffness, probably because of the young age."
To avoid missed diagnoses lawsuits, Fanaroff says physicians should do the following:
• Recognize that conditions such as meningitis and appendicitis are difficult to diagnose and often don’t present in classic fashion.
• Avoid the cognitive error known as "anchoring," which occurs when a physician latches on to the first diagnosis; such as viral gastroenteritis when the patient actually has appendicitis, or flu or migraine when the patient actually has meningitis. Anchoring may cause a physician to discount physical or lab findings that do not fit with the original diagnosis.
• Follow up with patients in a timely manner, and continually reassess diagnostic reasoning.
The initial contact of a parent by phone or with a nurse triage system was related to higher average payouts. "Litigation related to improper advice, or not recognizing symptoms which should have prompted office or hospital assessment, is at issue," says Scibilia. He recommends these practices:
• Have telephone protocols that are current and followed by staff.
• Recommend that the family be alert to worsening condition or unusual symptoms.
• Have good communication with the caretaker and good documentation of the encounters in the records.
"About 12% of cases were poorly defensible because of poor records or inadequate documentation, particularly of negative findings," says Scibilia.
• Bear in mind that meningitis, appendicitis, and pneumonia are among the most commonly claimed missed conditions and present in a wide variety of ways.
"Your best defense, should a claim be filed, is to have good documentation of negative, pertinent findings as well as positive findings," says Scibilia.
- Jena AB, Chandra A, Seabury SA, et al. Malpractice risk among U.S. pediatricians. Pediatrics 2013; 131(6):1148 -1154.
- Kain ZN, Caldwell-Andrews AA. What pediatricians should know about child-related malpractice payments in the United States. Pediatrics 2006; 118(2):464-468. F