Diagnosis-Related Medical Malpractice Claims With Indemnities Over $1 Million: Understanding the Primary Drivers

Jacqueline Ross, RN, PhD, Coding Director, and Kathrine Soulsby, RN, BSN, Senior Patient Safety Analyst, Department of Patient Safety and Risk Management, The Doctors Company, Part of TDC Group

Among physician members of The Doctors Company, the frequency of medical malpractice claims has decreased over a 20-year period. However, during roughly the same time, the percentage of medical malpractice claims with high-indemnity payments (greater than $500,000) has increased dramatically, and in recent years, most states have reported verdicts greater than $10 million.

Identifying and concentrating on factors related to these high-indemnity claims can help to both improve patient outcomes and reduce financial losses. One common thread in high-indemnity claims is diagnostic errors. Therefore, understanding more about how to protect against and prevent diagnostic errors is paramount to patient safety and to mitigating loss costs.

Study Design

A recent addition to our taxonomy for the coding and analysis of malpractice claims has been the ability to identify primary drivers, which are contributing factors pinpointed as the main catalysts for the events that caused the major injury or negligence. This analysis may be the first to focus on the primary drivers of malpractice claims.

This exploratory, descriptive analysis included those closed diagnosis-related claims against members of The Doctors Company from the loss years of 2010 to 2022 that concluded with an indemnity payment of $1 million or more and that had a primary driver coded. Each claim included in this study, 121 total, had at least one primary driver coded (claims may contain more than one primary driver).

Many diagnosis-related errors have been identified as having preventable contributing factors. The use of the Diagnosis-Related Process of Care framework from Candello, a data collaborative of medical professional liability insurers and health systems, contributed to our analysis.

Results

• Injury severity, based on the National Association of Insurance Commissioners (NAIC) Severity of Injury Scale, was high overall, with 91 percent of patients experiencing either death (34 percent) or a high-severity injury (57 percent).
• The primary driver of patient assessment was found in 94 percent of all high-indemnity claims.
• The failure to obtain a consultation or referral (22 percent) and communication among providers (18 percent) were also common primary drivers.
• Forty-five percent of the high-indemnity claims in this analysis had primary drivers in the testing and processing phase.

Risk Mitigation Strategies

• Acknowledge the potential for cognitive bias within daily practice, and use tools such as those from The Joint Commission. The influence of cognitive bias is suggested by the overwhelming prominence of the primary driver of patient assessment, accompanied by the commonality of the primary drivers of failure to obtain a consultation/referral and communication among providers. Although the potential for cognitive bias exists throughout the diagnostic process, its early phases are heavily laden with gathering, receiving, and processing information, making these phases especially vulnerable to any flaws in reasoning.
• Access tools for self-assessment related to diagnostic issues, such as Calibrate Dx from the Agency for Healthcare Research and Quality (AHRQ).
• Create systems using a systems engineering framework to close the loops and ensure that patients complete their tests, consultations, and appointments. With nearly half of the claims in this analysis revealing primary drivers in the testing and processing phase, the value of closed-loop communication to support practitioners is clear.
• Use checklists, such as those from the Society to Improve Diagnosis in Medicine.

We hope these insights will assist clinician leaders, healthcare systems, and hospitals to improve understanding of where to place patient safety initiatives and how to target efforts when working with healthcare practitioners to improve patient outcomes and reduce injury.

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