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The Etiology of Malpractice

Glauser, Jonathan MD, MBA

doi: 10.1097/
Legal Notes

Dr. Glauser is an assistant professor of medicine at Case Western Reserve University and attending staff faculty in emergency medicine at the Cleveland Clinic Foundation in Cleveland.



Why are emergency physicians sued? A recent retrospective review of 2,283 closed pediatric claims in the Physician Insurers Association of America database found that 96 percent originated in an emergency department, and four percent started in an urgent care center. The database contains statistics from 20 major malpractice insurance firms, insuring 25 percent of all physicians in the United States, and it seems reasonable to extrapolate the findings to the general pediatric emergency medicine community. (Pediatr Emerg Care 2005;21[3]:165.)

Although the report covered claims of patients up to age 18, 47 percent of the cases involved patients under age 2. The lion's share of these included missed meningitis, pneumonia, or “neurologically impaired” newborn. In older children, not surprisingly, missed appendicitis, fractures, and testicular torsion predominated.

Some data were not surprising. Only seven percent of cases went to trial, and of these, there was a judgment for the doctor in 80 percent of cases, validating the claim that physicians tend to get more than a fair shake in court. The legal cost of defending the cases was $36 million, although $116 million was eventually paid to plaintiffs. Malpractice suits most often involved fractures, meningitis, and appendicitis. In 66 percent of cases, the sued physicians had been named in previous claims. Consistent with data from earlier articles, claims were paid in only 18 of 391 cases (4.4%) in which no medical misadventure was identified. As to be expected, the average indemnity was considerably lower when a patient died compared with those who sustained a major permanent injury.

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Malpractice Causes

In an earlier life, this study would have had more appeal to me than it does now. Have a higher index of suspicion for meningitis in infants, obtain lots of images to rule out appendicitis, and examine boys with abdominal pain for testicular torsion, and you are home-free. The emergency medicine literature of the past 15 years has gone further to examine the root causes for malpractice in general, however. (Acad Emerg Med 2000;7[11]:1173.)

One such review did not examine specific entities but concentrated on the cognitive breakdowns in the diagnostic process. These breakdowns included failure to order an appropriate diagnostic test in 58 percent of missed ED diagnoses that harmed patients. In 42 percent of cases, a failure to perform an adequate history and physical examination was cited as at least a contributing factor. Failure to order an appropriate consultation was cited in 33 percent. The numbers add up to more than 100 percent because multiple factors were identified as contributing to a bad outcome. The missed diagnoses were the usual suspects: appendicitis, myocardial infarction, fracture, infection, aneurysm, and cerebrovascular disease. The novel approach was an analysis of why errors were made. (Ann Emerg Med 2007;49[2]:196.)

If errors in medicine are defined as “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim” (To Err is Human: Building a Safer Health System. Washington, D.C.: National Academy Press, 1999), what can we glean from this report? Most striking to me was the failure to order indicated tests in 58 percent of cases and incorrect interpretation of tests in 37 percent. Most of the missing tests were imaging, such as ultrasound, radiographs, or CT because the emergency physician did not recognize that they were required (93% of missed cases).

Less striking but perhaps more worrisome is that excessive workload was a contributing factor in 23 percent of cases. Clearly, this is a safety issue for patient care, which may entail overcrowding from held admissions to simply overwhelming census. Whatever the reason, this problem can be addressed only with additional resources, a tough sell to any administrator or for-profit group.

Handoffs were cited as a contributing factor in 24 percent of cases with error and bad outcome. Lack of supervision, fatigue, and patient-related factors were commonly listed as contributing factors as well. In one of six missed diagnoses, test results did not reach the correct clinicians, even when the proper tests were ordered. Atypical presentations of common illnesses were listed as a major contributor to error, although what constituted an “atypical presentation” was not detailed. Not surprisingly, enhanced staffing during periods of heavy workload was listed as a possible fix.

It has been noted that most lawsuits originate from the ED over weekends, holidays, evenings, and nights. (Risk Management in Emergency Medicine. Dallas, TX: American College of Emergency Physicians. 1985.) Of course, one obvious cause for this is that these constitute more than 80 percent of all of the hours in the year. It is unclear how much understaffing and fatigue contribute.

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What Can We Conclude?

Although there are still awards for plaintiffs when no medical mismanagement has occurred, such cases do appear to be the exception. While nearly every author who has written an opinion has reached the conclusion that defensive medicine does not avoid litigation and does drive up costs, it should be disturbing that more than half of malpractice claims involve failure to order an appropriate diagnostic test. It may be that we need to revisit the idea of ordering more testing and consultations in the interest of patient safety rather than as litigation-avoidance behavior. I previously have advocated this strategy defensively for patients who seem particularly spiteful or litigious, but at least one then has the comfort of knowing that their respective medical bills will be higher for their efforts.

Little is really known about the system-of-care factors that lead to diagnostic errors, but ultimately addressing these factors will be what improves emergency diagnostic processes. Emergency departments must pay particularly close attention to their communication policies and procedures for critical test results. Strategies for direct communication of findings between radiology or laboratories and the ordering providers also should be closely followed.

Money still rules, so the 23 percent of cases with both medical error and ensuing damages attributable in part to excessive workload is going to be a tough fix. We may have reached a point at which there is no ethical way to run a for-profit group in emergency medicine in most locales.

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