Takeaway: A study investigating high-dollar medical malpractice litigation illustrates how reducing diagnostic errors is paramount to enhancing patient safety and mitigating loss costs.
Analysis of Sample Claims: Through a combination of social and judicial factors, the percentage of medical malpractice claims with high-indemnity payments—greater than $500,000—has increased dramatically over a roughly 20-year period. In recent years, most states have reported verdicts greater than $10 million.
Diagnostic errors are common in high-indemnity claims, and discovering primary drivers may allay risks. Primary drivers are contributing factors pinpointed during the coding and analysis of malpractice claims, as the main catalysts for events that caused major injury or negligence. Many diagnosis-related errors have been identified as having preventable contributing factors.
Claims With Indemnities Over $1 Million Show Striking Similarities: In a recent study of 121 claims, the exploratory, descriptive analysis included those closed diagnosis-related claims against members of The Doctors Company from the loss years of 2010 to 2022. These concluded with an indemnity payment of $1 million or more and had a primary driver coded. Some findings stood out:
- Injury severity was high overall among claims studied, with 91% of patients experiencing either death (34%) or a high-severity injury (57%), as defined by the National Association of Insurance Commissioners Severity of Injury Scale.
- Patient assessment appeared as a primary driver in 94% of claims studied.
- Certain other primary drivers appeared frequently, including the failure to obtain a consultation or referral (22%) and communication among providers (18%). It is also notable that 45% of the high indemnity claims in this analysis had primary drivers in the testing and processing phase.
Tips for Malpractice Risk Mitigation:
Resources for Recognizing Potential Cognitive Bias
The overwhelming prominence of the primary driver of patient assessment suggests the potential influence of cognitive bias. This impression is reinforced by the conspicuous presence of the primary drivers of failure to obtain a consultation/referral and communication among providers.
Cognitive bias can crop up at any time, but the early phases of the diagnostic process are especially susceptible to flaws in reasoning, as they are heavily dependent upon gathering, receiving, and processing information.
It is the nature of cognitive bias to be, at least initially, invisible to the person experiencing it. This is why clinicians and healthcare organizations might want to consider accessing tools for self-assessment related to diagnostic issues, such as Calibrate Dx, from the Agency for Healthcare Research and Quality.
Consider committing to a systems engineering framework in which practitioners create systems to close the loops and ensure that patients complete their tests, consultations, and appointments. It’s easy to affirm the value of closed-loop communication to both patient safety and practitioner liability, given that nearly half of the claims in this analysis reveal primary drivers in the testing and processing phase.
Clinicians and healthcare organizations not already doing so can use checklists, such as those from the Society to Improve Diagnosis in Medicine. Checklists are more effective the more they reflect modifications made by the team that will use them, coupled with implementation training.
This discussion of high-indemnity claims and how to mitigate the risks they reveal is based on Understanding Diagnosis-Related Medical Malpractice Claims With Indemnities Over $1 Million, published by The Doctors Company.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.