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How to Avoid Making a Misdiagnosis — and the Risk of Lawsuits

STUMP, ELIZABETH

doi: 10.1097/01.NT.0000365763.87815.e3
Departments: Legal-Ease

This article does not constitute legal advice and is not intended to be used as a substitute for specific legal advice or opinions.

How concerned should neurologists be about possible lawsuits for misdiagnosis or failure to diagnose? The latest statistics on medical liability claims from the 2009 report on neurologists from the Physician Insurers Association of America, a leading insurer trade association, offer a cautionary note.

The most prevalent cause for medical liability claims closed between 1985 and 2008 — 1,189 of 3,825 claims — were errors in diagnosis, according to the 2009 PIAA Risk Management Review: Neurology Edition (available at www.piaa.us). Of these, 344 claims resulted in an average indemnity payment of $372,017. For 2008 closed claims, neurology and neurosurgery had the highest average indemnity of the 28 specialties included in the PIAA review. Among alleged diagnostic errors, the most prevalent conditions named were headache, malignant neoplasms of the brain, intracranial and intraspinal abscess, subarachnoid hemorrhage (not following injury), and fracture of the vertebral column.

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By virtue of practicing medicine, clinicians are likely to misdiagnose or fail to diagnose at some point in their career, said Lance D. Schreiner, a litigation attorney who specializes in medical malpractice defense at Zuger Kirmis & Smith in Bismarck, ND.

A misdiagnosis is not necessarily an error. Oftentimes the initial diagnosis is discarded during the course of evaluation and treatment. And the proper diagnosis may not be apparent right away. In some cases of misdiagnosis, it can take months or longer between initial symptoms, initial diagnosis, and the proper diagnosis, said Richard Dubinsky, MD, professor and neurology program director at the University of Kansas Medical Center, and chair of the AAN Practice Improvement Subcommittee.

Clinicians may reach the wrong diagnosis when they observe “vague symptoms” of neurological disorders before they become clearer over time, or they lack knowledge about the more obscure neurological disorders in movement disorders and neuromuscular medicine — this is usually not an error of judgment by the physician,” Dr. Dubinsky said. “In my experience, when I contact referring physicians by phone and discuss the cases, they seem to understand my reasoning and agree with the diagnosis. The tools that I find to be the most helpful are to listen to the patient and their family, and to be a keen observer of the patient.”

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HOW TO MINIMIZE RISK

Donna Vanderpool, MBA, JD, assistant vice president of Risk Management at Professional Risk Management Services, Inc. — and manager of The Neurologists' Program, the endorsed insurance provider of the AAN — noted that applying strategies that mirror best clinical practices can minimize the risk of an allegation of misdiagnosis.

Documentation, always paramount in clinical practice, is particularly crucial for when the diagnosis proves inaccurate. Physicians who assert something was done — a test was ordered, discussions with the patient took place — but fail to produce documentation of the alleged act “have considerable difficulty proving in court that it was done,” Vanderpool said.

“Document everything that you can, including every contact with the patient and their family. If it is not documented, it did not happen,” said Dr. Dubinsky.

“Make sure that all chart entries are legible, and never alter the chart; you can add late notes and document why the note is delayed or why you are clarifying the note,” he continued. “The medical record should contain facts, your observations, and your analysis, not opinions unrelated to the problem at hand. Never criticize another health care provider in the medical records, and never criticize another health care provider in front of the patient and their family. Understand that within HIPPA constraints, everything in the medical record can be viewed by the patient, their family members, and other health care providers.”

Obtaining a thorough patient history, reviewing information in a timely manner, and communicating effectively with patients and consulting physicians will also minimize risk, Vanderpool said.

When consulting with patients, Dr. Dubinsky ensures that they understand that it is not uncommon for good doctors to disagree about difficult-to-diagnose illnesses, and that there are few absolute tests to verify a clinical diagnosis of neurological disorders, so waiting and observing the course of a disease can help to clarify a diagnosis. “If they are not completely satisfied, encourage them to seek another opinion and suggest clinicians in your region and nationally,” he advised.

What about disclosure of an error or admission of error? “One of the more difficult areas for a physician is the disclosure of an error. As soon as you suspect that an error may have occurred, notify the patient and their family,” Dr. Dubinsky advised. “Provide them with all the information that you have available, encourage them to ask questions, and make certain that you have addressed as many of their questions and uncertainties as you can. A change in diagnosis or a major change in therapy are easier to address than a sudden worsening of a patient's condition. Both require sensitivity and patience from the physician.”

Disclosure is required by the AMA Ethic code and by Joint Commission standards, Vanderpool said. Risk management supports disclosure in the event of an actual error in diagnosis (as distinguished from a change in the working diagnosis) because patients have the right to know and need to make informed decisions about medical care. Neurologists facing a disclosure issue should communicate with their facility and follow its disclosure policies and procedures, and also seek guidance from their professional liability insurer, she said.

“Many states have adopted ‘I'm sorry’ statutes, which allow a physician to make expressions of apology, condolence, compassion, or benevolence to a patient or patient's family without such a statement being admissible as evidence in a medical malpractice lawsuit,” Schreiner explained.

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RESPONSE TO LAWSUITS

If an allegation is made, the medical record will be examined by another neurologist to determine if the misdiagnosis was the result of the physician in question not possessing the knowledge and skill necessary to make the diagnosis, or whether the evaluation of the patient was careless. Most states require plaintiffs to support their lawsuit with a qualified expert's statement supporting a violation of the “standard of care” which most likely caused an injury.

The “standard of care” is not the measure of what a doctor thinks should have been done in hindsight, but rather what any reasonable doctor would have done based on available evidence, said Schreiner. Medical texts, literature, and practice guidelines from medical associations can all help define acceptable practice.

If the neurologist's actions meet the standard of care — that is, if the record reflects a reasoned and prudent approach to the diagnosis, consideration of differential diagnoses, and a history, physical, and testing customarily performed by colleagues when assessing the patient's signs and symptoms — “then nine times out of ten, a prosecuting lawyer will not take the case,” said Schreiner.

“The law does not require that a diagnosis be ‘right’ and does not use hindsight to assess negligence,” said Schreiner. “It recognizes that even if a neurologist ‘misses’ a diagnosis or makes the ‘wrong’ diagnosis, there is no liability unless you did not use a reasonable and prudent approach when making the diagnosis.”

It is a universally accepted principle of law that a bad outcome, in and of itself, does not establish liability, Schreiner added.

In North Dakota, for instance, where Schreiner practices, the juries are instructed that a poor result by itself is not enough to hold physicians liable or find them negligent regarding diagnosis and treatment.

If physicians follow the standard of care and have the background, education, and training to make a diagnosis, they are allowed to exercise best judgment and not be held liable for a misdiagnosis.

“One strategy we use is to educate the jury on the ‘art’ of medicine and stress that a diagnosis often comes down to a judgment call,” Schreiner said.

Additionally, plaintiffs must prove not only a negligent misdiagnosis but also that they suffered an injury they would not have experienced had the neurologist made the “correct” diagnosis, said Schreiner.

“If your patient has myotonic dystrophy and you failed to diagnose it until a follow-up exam a year later, since there is no cure, there likely is no injury,” he said. “On the other hand, if you negligently fail to diagnose an operable tumor and the patient dies, there is likely an injury directly related to the failure to diagnose.”

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“Even in this scenario, the plaintiff must prove with expert testimony that the tumor was operable and it is more likely than not that had it been removed, the patient would have survived. We often defend ‘failure to diagnose’ cases on this element alone,” Schreiner said.

For lawsuits involving a neurologist with liability exposure for alleged negligence of other clinicians they worked with — for example, claims that a radiologist was negligent in interpreting images, or a pediatrician failed to notice critical testing was not done — many states have abolished what was termed “joint and several” liability, in which each defendant in a lawsuit was responsible for the entire judgment. Instead, they have adopted “several only” liability where each defendant is responsible for only his or her share of the fault, Schreiner said.

“For example, if two physicians were sued and the jury determined physician one was 30 percent at fault and physician two was 70 percent at fault, with a total judgment of $100,000, then physician one would only be required to pay $30,000 and physician two would pay $70,000.”

The take-home message: “Be conscientious and document your record,” Schreiner said.

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MORE INFORMATION ON LIABILITY AND RISK MANAGEMENT

  • The Physician Insurers Association of America (PIAA) represents medical professional liability insurance companies owned or operated by physicians, hospitals, dentists, and other healthcare providers. The Association houses the PIAA Data Sharing Project, a database that contains more than 250,000 claims. For more information about the PIAA or the database, visit www.piaa.us.
  • The Neurologists' Program (TNP), managed by Professional Risk Management Services, Inc., is the only medical malpractice insurance program designed specifically for neurologists and is endorsed by AAN. AAN members are eligible to receive a 5 percent premium discount. Benefits include complimentary one-on-one risk management consultations, online educational activities with CME credit, articles and resources, online multimedia tutorials, and risk management e-newsletters.

TNP is currently available in select states and will be available nationally within the next year. Call (800) 245-3333 or visit www.tnpinsurance.com to learn about more features and benefits.

©2009 American Academy of Neurology