Emergency Department and Urgent Care Medical Malpractice Claims 2001–15

Kelly E. Wong, MD; P. Divya Parikh, MPH; Kwon C. Miller; Mark R. Zonfrillo, MD, MSCE

Disclosures

Western J Emerg Med. 2021;22(2):333-338. 

In This Article

Discussion

Making time-sensitive healthcare decisions for patients with myriad and complex conditions based on limited information is routine for emergency physicians (EP), but not without risk. Compared to other specialties where physicians may avoid caring for high-risk patients in order to mitigate medical liability, EPs are limited in their ability to choose their patient population.[1] The American Medical Association found that 8.7% of respondents in emergency medicine faced a MPL claim in the prior year alone,[3] and it is estimated that over 75% of EPs will be named in a malpractice suit by the end of their career.[4]

In the early 2000s, tort reform "intended to protect physicians who are practicing with incomplete information in high-intensity care settings"[5] changed the definition of when physicians can be named in MPL and the manner in which those claims are resolved. For instance, the definition of malpractice in some states changed from "a deviation in standard care" to "gross negligence,"[5] and over the same time period, nine states set a new cap on damages in MPL cases.[6] Proponents of tort reform argue that these increased protections will result in decreased overall healthcare spending by assuaging physicians' fears and changing their practice patterns; however, that has yet to be borne out in the literature. One analysis of MPL in three states (TX, GA, and SC) in the years immediately before and after tort reform observed no change in three proxies of defensive medicine practices: ordering computed tomography (CT) and magnetic resonance imaging (MRI); hospital admission;, and total charges for ED visits.[5] Similarly, a retrospective study of EPs recently named in a malpractice suit compared to similar, unnamed peers found no difference in what they called care intensity (measured as admission rate or relative value units (RVU) per visit as a proxy for increased testing) or speed (measured as RVUs per hour or length of stay).[7]

Brown et al. examined closed MPL claims originating from EDs for adult patients from 1987–2007 using an overlapping but different data set. They found an average indemnity of $175,545 in settled claims and an average indemnity of $393,350 in verdicts found for the plaintiff. Of the 11,529 claims identified by their dataset, 64% were withdrawn, dropped, or dismissed with no payment paid to the plaintiff. Error in diagnosis was the most common category of error. Acute myocardial infarction was both the most common specific diagnosis cited and had the highest paid-to-closed ratio in their dataset, with 42% of all claims resulting in a payment.[2]

While there have been previous analyses of MPL, including Brown et al., the source data means no direct comparisons can be made. This retrospective review updates the body of knowledge surrounding medical liability and represents the most recent analysis of claims for adults treated in emergency or urgent care settings. Average indemnity of settled claims in our study (2001–2015) was $297,709, and average indemnity of claims where the plaintiff prevailed was $816,909. The majority of cases (92.6%) that proceeded to trial were found in favor of the defendant. The average defense fee when the verdict found for the defendant was $111,446. Even claims that were dropped, dismissed, or withdrawn had average defense fees of $25,996.

While we did not analyze trends over our study period, a review of all specialties during a similar time range (2004–2016) found an inflation-adjusted increase in all indemnity, with payments related to diagnosis-related errors increasing by 31.2%.[8]

Studies have estimated that EPs face an average time to resolution of 16.7 months for each open claim.[9] This extended period of time has consequences for parties on either side of the claim. Plaintiffs and their families potentially face a delay in compensation, loss of work, and emotional repercussions of a protracted resolution. For physicians among all specialties, 50% of claims that ultimately resulted in no payment took more than one year to be resolved.[9] Lost clinical time,[10] in addition to defense fees and value of lost reputation,[11] may negatively impact physicians, their careers, and their families.

Errors in diagnosis was the most common reason for a claim in this dataset, consistent with other adult[2,12] and pediatric[13,14] emergency medicine studies. Research focusing on the processes leading to an error in diagnosis in the ED identified four main categories: failure to order tests (58%); inadequate medical history and physical examination (42%); incorrect interpretation of tests (37%); and failure to request a consultation (33%).[15]

To avoid medical errors, EPs' rapid access to most imaging and testing modalities without having to obtain prior authorization may contribute to costly and unnecessary utilization of resources. A survey of EPs' most recent act of defensive medicine found that 63% of respondents ordered imaging (CT, MRI, or radiograph) that was not clinically indicated.[1] Overtesting and overimaging is not without risk either; one MPL study of imaging in the ED found that 37% of diagnostic errors resulting in patient harm involved the misinterpretation of diagnostic testing, with plain radiographs being the most common at 52%.[15]

"No medical misadventure" was the second most common chief medical factor cited in claims. According to the MPL Association, "'No medical misadventure" is a code used in the absence of a medical mishap. If a claim has no medical misadventure but is felt to have legal merit, there is an appropriate associated issue designated in the database. These can be problems with records, consent issues, laboratory issues or assault/battery, abandonment, etc."[16] Despite being the second most common cited reason for bringing a claim, only 3.3% of claims citing "no medical misadventure" resulted in a payout, and represented only 2.4% of total paid claims.

In our analysis, claims listing grave injury had more than double the average indemnity as paid claims listing death as the resulting injury ($686,239 vs $326,350). Death was the most common (38.5%) injury cited in all closed adult MPL claims, followed by minor temporary injury (15.1%) and major temporary injury (13.8%). A prior study examining MPL claim outcomes and time to resolution found that the more severe the injury listed in the claim, the longer the time to resolution.[9] Among all specialties, 51% of claims with emotional injury only took at least six months to resolve. In 62% of claims listing death or permanent disability, the time to resolution was over one year, with 3% lasting longer than five years.[9]

Acute myocardial infarction was the diagnosis with the highest ratio of paid-to-closed claims. Chest pain continues to be one of the most common chief complaints in the hospital, representing 8–10 million visits per year,[17] with acute ST-elevation myocardial infarctions (STEMI) representing an estimated 0.26% of ED visits.[17] Risk stratification in this population may be aided by the introduction of high-sensitivity troponin and evidence-based decision tools; however, diagnosis of acute myocardial infarction is also affected by subjective interpretation of electrocardiograms that may vary between providers. The overall incidence of STEMIs seen in the ED has been decreasing in recent years. Both the push to improve time to reperfusion and the pre-hospital recognition of STEMIs may have contributed to this decrease, allowing patients to bypass EDs and present directly to catheterization labs. Ward et al. speculated that atypical presenting STEMIs that are more difficult to diagnose and treat may still present to the ED, while classically presenting STEMIs are more likely to proceed directly to the catheterization lab.[18]

Emergency medicine was the most commonly named specialty in our study, followed by internal medicine, family practice, radiology, and general surgery. EPs might view requesting a consult from another specialty as a way of mitigating risk. For example, a review of MPL involving point-of-care ultrasound found that 40% of those imaging studies were performed by radiology, even though both the study and its interpretation were within EPs' scope of practice.[19] A consulting physician-patient relationship must occur through "an overt or implied agreement to participate in a patient's care, or by reviewing specific tests or studies for the purpose of diagnosis and treatment."[20] The case law surrounding shared liability underscores the challenge of delineating when a formal consultation has been made and highlights various occasions when EPs incorrectly presume that a formal consult (and therefore shared liability) was established.

It is our hope that these findings based on these MPL data may help to inform emergency providers about risks and outcomes, and may provide important context to improving the care of adults treated in emergency or urgent care settings.

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