Study of Malpractice Claims Involving Children

Darrell Ranum, JD, CPHRM, Vice President, Patient Safety and Risk Management

The Doctors Company analyzed 1,215 claims (written demands for payment) filed on behalf of pediatric patients that closed from 2008 through 2017. The study is based on the claims filed against physicians in 52 specialties and subspecialties.

Great developmental differences exist between neonates in their first month of life and teenagers who are ready to enter adulthood—in some cases, having borne children of their own. To identify the differences based on age, we focused on four age groups:

Animated Growth Chart

We included all medical malpractice claims and lawsuits against physicians in medical and surgical specialties but excluded dentists and oral surgeons.

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Physician Specialties

The pediatric patients in this study were treated by a variety of physician specialties. Obstetricians were most frequently involved with neonatal patients. Pediatricians, orthopedic surgeons, emergency medicine physicians, and family medicine physicians were most frequently named as defendants in claims filed on behalf of children older than one month of age.

The top 10 physician specialties named as defendants represented 72 percent of all pediatric patient claims:

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Pediatric Claim and Lawsuit Payments

Of the 1,215 claims in the study, 446 (37 percent) resulted in a payment to the claimant.


Mean indemnity


Mean expense

The median indemnity payment was $250,000, and the median expense to defend these claims was $99,984.

A review by age group showed that neonates had the highest mean indemnity ($936,843) and median indemnity payment ($300,000). The mean expense was also the highest ($187,117), as was the median expense ($119,311).

Pediatric age group categories for paid claims:

  Mean indemnity paid Mean expense paid Median indemnity paid Median expense paid
Neonate $936,843 $187,117 $300,000 $119,311
First year $448,205 $150,570 $200,000 $117,882
Child $493,100 $146,060 $200,000 $94,174
Teenager $386,849 $129,816 $162,500 $83,205
  Claim count Percent of claims with indemnity
Neonate 173 39%
First year 33 34%
Child 108 37%
Teenager 132 35%

The median number may be a more accurate representation of the amount of indemnity in paid claims. The median eliminates the impact of very high or very low indemnity amounts, giving a better idea of a typical value.

Although there are some differences between the mean and median amounts of indemnity paid in pediatric patient claims, the percentage of claims that are paid for each patient age group is very similar.

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Long-Term Claim Exposure

A concern often raised regarding the care and treatment of pediatric patients is that minors and their representatives can file claims many years after treatment is provided.

Our pediatric study looked at the length of time from the event that caused the alleged patient harm until the claim was filed.

We learned that 76.7 percent of the claims were filed within three years of the event. By five years, 85.1 percent of claims had been filed; by 10 years, 96.7 percent of claims were filed. Only 1.9 percent of pediatric claims were filed 11 through 15 years after the patient was harmed, and only 1.1 percent of pediatric claims were filed 16 through 20 years after the event.

Family Pediatric Doctor

Our experience indicates that 3 percent of pediatric claims were filed more than 10 years after the injury. This highlights the importance of quality documentation. Years after the alleged harm, it is still a factor in defending claims.

Years from event until claim was filed:

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Treatment Locations

Pediatric patients were treated in a variety of locations. Neonates were most often treated in labor and delivery (60 percent) and a physician’s office or clinic (14 percent). Children in their first year were most often treated in a physician’s office or clinic (45 percent) or a hospital room (14 percent). Children ages one through nine years received most treatment in their physician’s office or clinic (37 percent) or in the emergency department (14 percent). Teenagers received their care most often in a physician’s office or clinic (40 percent), ambulatory surgery (16 percent), and emergency department (12 percent). 

Location where care was provided:

  Neonates First year Child Teenager
Physician office or clinic 14% 45% 37% 40%
Labor and delivery 60% 3% 0% 4%
Emergency department 2% 11% 14% 12%
Ambulatory surgery 1% 1% 11% 16%
Hospital operating room 2% 6% 9% 10%
Patient's hospital room 2% 14% 7% 7%
Nursery 9% 2% 0% 0%
Neonatal ICU 7% 2% 0% 0%
Pediatric ICU 1% 5% 4% 2%
Patient's home 0% 3% 6% 0%
Radiology 1% 2% 3% 2%

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Most Commonly Injured Body Parts

The most common neonatal patient injuries were:

Patients in their first year of life suffered injuries to:

Patient deaths occurred in 13 percent of claims filed for neonatal patients, 30 percent for patients in their first year of life, 15 percent for children ages one through nine, and 13 percent for teenaged patients.

Children ages one through nine most commonly suffered injuries to:

Teenagers most commonly suffered injuries to:

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Injury Severity

Patient injury severity varies by age group. Younger patients suffer high-severity injuries at a higher rate (neonate: 75 percent; first year: 65 percent) compared with older patients (child: 44 percent; teenager: 32 percent).

Injury Severity Chart

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Most Common Patient Allegations

Studying allegations clarified the motivations for filing claims. In outlining the allegations for each group, we included categories of allegations totaling 3 percent or more.

The most common allegation for neonates was obstetrics-related treatment for injuries that occurred during labor and delivery (63 percent). Other age groups had few cases related to obstetrics-related treatment.

Most common allegations for neonate age group (<1 month):

  Number of claims Percent
Obstetrics-related treatment 283 63%
Diagnosis-related (failure, delay, wrong) 62 14%
Medical treatment (nonobstetric) 58 13%
Surgical treatment (nonanesthesia) 17 4%

For patients in their first year of life, 3 percent of the cases included allegations related to obstetrical treatment.

Most common allegations for first-year age group (1 to 11 months):

  Number of claims Percent
Diagnosis-related (failure, delay, wrong) 44 44%
Medical treatment (nonobstetric) 21 21%
Surgical treatment (nonanesthesia) 7 8%
Patient monitoring 3 3%
Obstetrics-related treatment 3 3%
Anesthesia-related treatment 3 3%
Failure to warn of risks 3 3%
Failure to provide safety (falls) 3 3%
Other medication-related 3 3%

For children ages one through nine, less than 1 percent of cases involved obstetrical care.

Most common allegations for child age group (1 to 9 years):

  Number of claims Percent
Diagnosis-related (failure, delay, wrong) 112 38%
Medical treatment (nonobstetric) 64 22%
Surgical treatment (nonanesthesia) 52 18%
Communication (other) 19 6%
Improper medical management 11 4%

Obstetrics-related allegations for the teenager group made up 3 percent of the claims. All 13 of the teenager group claims with an obstetrics-related allegation involved a pediatric patient who was pregnant and received care during pregnancy, labor, and delivery.

Most common allegations for teenager age group (10 to 17 years):

  Number of claims Percent
Diagnosis-related (failure, delay, wrong) 128 34%
Surgical treatment (nonanesthesia) 89 23%
Medical treatment (nonobstetric) 73 19%
Improper medical management 22 6%
Anesthesia-related treatment 14 4%
Obstetrics-related treatment 13 3%

Diagnosis-related allegations were the most common allegation in all but the neonate age group. Age groups older than neonates experienced diagnosis-related claims in 34 to 44 percent of all claims and lawsuits in their age group.

In the neonate age group, cases with a diagnosis-related allegation included ventricular septal defect, kernicterus, hydronephrosis, congenital deformity of the hip, and infections (sepsis, group B strep, and enterocolitis, for example).

In older age groups, the most common diagnoses in cases with a diagnosis-related allegation included fractures and dislocations, malignant neoplasms (brain, mediastinum, eye, genital organs, skin, lymph nodes, etc.), torsion of testis, meningitis, pneumonia, acute appendicitis, viral and bacterial infections (MRSA and septicemia, for example), and cardiac conditions.

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Allegation Trends

A review of allegations for neonatal patients over a 10-year period showed a general decrease in allegations of delay in treatment of fetal distress until it increased again in 2015 and 2016. Allegations of improper performance of vaginal delivery (including brachial plexus injuries from shoulder dystocia, brain damage from forceps, and vacuum-assisted deliveries) have decreased as a percentage of neonatal claims since a high in 2011. Improper management of treatment allegations increased from 0 in 2008 to 25 percent in 2015; then the allegations peaked again at 24 percent in 2017. Examples of improper management of treatment included management of sepsis, subgaleal hematoma, respiratory distress, and anemia and bilirubinemia.

Allegations in claims for neonate age group (<1 month):

 Delay in treatment of fetal distress

 Improper performance of vaginal delivery

 Diagnosis-related (failure, delay, wrong)

 Improper management of treatment

For pediatric patients other than neonates, allegations related to diagnosis (failure, delay, or wrong) have remained high each year, ranging from 29 percent to 47 percent over 10 years. The most common examples included torsion of testis, acute appendicitis, meningitis, pneumonia, fracture of epiphysis, benign neoplasm of the brain, dislocated elbow, spotted fevers, cardiac arrest, osteomyelitis of pelvic bones, slipped femoral epiphysis, congenital deformity of the hip, and postoperative infection.

Improper management of treatment, the second-most common allegation for this age group, varied from 5 percent to 16 percent over 10 years. Examples of improper management of treatment in patients older than neonates included management of pneumonia, meningitis, sickle cell trait, and fractures.

Allegations in claims for pediatric patients (excluding neonates):

 Diagnosis-related (failure, delay, wrong)

 Improper management of treatment

 Improper performance of surgery

 Improper performance of treatment or procedure

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Factors that Contributed to Patient Injury

The two most common factors contributing to neonatal patient injuries were selection and management of therapy (39 percent) and patient assessment issues (37 percent). Selection and management of therapy refers to clinical decisions related to delivery: vaginal, operative vaginal, and cesarean section.

Patient assessment issues contributed to patient injury when important information was not considered. An example in neonatal claims is failure to estimate and document fetal weight prior to proceeding with a vaginal delivery. Shoulder dystocia with brachial plexus injuries prompted reviews of these types of decisions. Decisions that did not include an estimate of neonatal weight were viewed as having inadequate patient assessments.

In children older than neonates, issues involving patient assessment were the most common factor contributing to patient harm (36 to 42 percent of the claims in each age group). In these cases, inadequate assessments were often identified by physician experts in cases with incorrect diagnoses. Important information was not collected or was not factored into the diagnosis.

Clipboard Clip Art

The most common patient assessment issue was failure to appreciate and reconcile relevant signs, symptoms, and test results. In these cases, clinicians failed to recognize the clinical picture from the available information, including patient history, reported symptoms, physical exam, and test results.

Other examples of inadequate assessments included failure or delay in ordering diagnostic tests, inadequate history and physical (including allergies), misinterpretation of diagnostic studies, and over reliance on negative findings in test results on patients with continued symptoms.

Contributing factors for neonate age group (<1 month):

  Number of claims Percent
Selection and management of therapy 174 39%
Patient assessment issues 164 37%
Communication among providers 98 22%
Technical performance 86 19%
Insufficient/lack of documentation 74 17%
Patient factors 67 15%
Communication between patient/family and providers 65 15%

Contributing factors for first-year age group (1 to 11 months):

  Number of claims Percent
Patient assessment issues 41 42%
Insufficient/lack of documentation 20 21%
Communication between patient/family and providers 16 16%
Selection and management of therapy 16 16%
Communication among providers 16 16%
Failure/delay in obtaining consult/referral 16 16%
Patient factors 15 15%

Contributing factors for child age group (1 to 9 years):

  Number of claims Percent
Patient assessment issues 115 39%
Communication between patient/family and providers 64 22%
Patient factors 63 21%
Technical performance 51 17%
Selection and management of therapy 50 17%

Contributing factors for teenager age group (10 to 17 years):

  Number of claims Percent
Patient assessment issues 138 36%
Patient factors 94 25%
Communication between patient/family and providers 74 19%
Technical performance 63 17%
Communication among providers 58 15%
Insufficient/lack of documentation 58 15%

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Study Discussion

The types of problems experienced by pediatric patients change as they grow older. Neonates and infants in their first year of life were more vulnerable than older children. In this claims analysis, children less than one year of age experienced high-severity injuries at almost twice the rate of children older than one year.

Neonates may experience complications due to difficult labor and delivery. They also face congenital conditions that may not be readily diagnosed and treated.

Children older than one year experienced more injuries from trauma, communicable disease, and malignancies. Teenagers experienced trauma and illness, and teenaged females may also face the dangers of pregnancy and childbirth.

This wide spectrum of development added to the challenges of diagnosing and treating pediatric patients. Clinicians need the assistance of reliable systems, such as those that prompt vaccinations at appropriate intervals and track test results for ill children.

Communication breakdowns between patients/families and providers occurred in 15 to 22 percent of pediatric patient claims, depending on the age group. Inadequate communication resulted in incomplete information to make an accurate diagnosis and in failure to adhere to discharge instructions. Communication failures also resulted in inadequate guidance for parents on conditions that required immediate care, thus limiting a physician’s ability to treat a patient in a timely manner.

A critical time frame for communication follows pediatric surgery. Physicians and their staff members should be attuned to concerns communicated by parents. Staff members need to know when to notify the physician about a parent’s call. The calls provide the first opportunity to address life-threatening conditions, such as obstructed airways, serious allergic reactions, and spreading infections.

In every age group, physician reviewers identified cases with inadequate assessments. Important information may be missed if the physician does not conduct a thorough history and physical exam.

System failures accounted for a significant number of patient injuries. Failing to track orders for diagnostic tests resulted in lost test results. Failing to call critical test results or diagnostic findings to treating physicians delayed treatments.

Early recognition of a patient’s changing status is essential when providing interventions. It requires effective monitoring and documentation, communication among treating physicians, rapid response team implementation, and thorough patient assessments.

This study also highlights the importance of good documentation. The quality of the medical record can be a significant factor in defending a claim that is filed years later.

Adhering to these strategies improves the physician’s ability to provide high-quality care and to successfully defend care.

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Risk Mitigation Strategies

The following strategies can assist physicians in preventing some of the concerns identified in this study:

baby clip artFor Neonates

  1. Become familiar with the National Institute of Child Health and Human Development (NICHD) nomenclature and participate with nurses in regular fetal monitoring learning activities. The ability to identify fetal heart rate (FHR) patterns predictive of metabolic acidemia is essential to collaborate on clinical interventions effectively.
  2. Obtain electronic fetal monitoring certification from one of the certifying bodies available for physicians, and regularly update fetal monitoring interpretation skills. Require certification as part of the credentialing process.
  3. Engage in dialogue about the FHR tracing and assign a category and care plan that both the physician and nurse can agree on.
  4. Implement an early warning system that outlines vital sign parameters and requires immediate bedside evaluation and escalation of care when necessary.
  5. Respond without delay when a nurse requests a physician assessment.
  6. Develop an effective chain-of-command policy that can be activated when conflicts about diagnosis and treatment cannot be resolved.
  7. Conduct drills to ensure 30-minute response times for emergency cesarean section deliveries.
  8. Carry out simulations of low-frequency/high-severity obstetric emergencies so staff members are prepared for infrequent events, such as obstetric hemorrhage, shoulder dystocia, eclamptic seizures, sepsis, umbilical cord prolapse, amniotic fluid embolism, and neonatal resuscitation.
  9. Hold education programs for the entire staff with up-to-date information about safety and technical skills of operative vaginal delivery.
  10. Estimate and document fetal weight when considering vacuum-assisted vaginal delivery. Plan the exit strategy, such as calling the cesarean section team in advance in case the extraction is unsuccessful.
  11. Implement a protocol for the care of newborns after vacuum delivery to monitor for scalp swelling consistent with caput, subgaleal hematoma, or cephalohematoma.

Children Ages One Month to 17 Years of Age clip artFor Children Ages One Month to 17 Years

  1. Ensure quality documentation. Documentation is essential for coordinating quality care and defending a claim that may not be filed until years after the alleged injury. In this study, 3 percent of pediatric claims were filed more than 10 years after care was provided.
  2. Conduct careful reevaluations when patients return with the same or worsening symptoms. If no new information comes to light, consider a second opinion or referral to a specialist. In this study, the most common allegation for children older than one month was failure, delay, or wrong diagnosis. Inadequate patient assessments most commonly contributed to patient injury.
  3. Ensure an adequate exchange of information. Communication with younger pediatric patients can be very challenging, and the problem is compounded when English is a second language for parents. Utilize translation services if communication is difficult.
  4. Provide parents with information to help them recognize when a sick child requires emergency care. Train office staff to recognize the types of concerns raised by parents during phone calls that should prompt immediate assessment and treatment.
  5. Engage the patient/parents to ensure accurate histories and assist in the diagnostic process. Take time to explore patient complaints, especially when a patient returns to the office with continued or worsening symptoms. Diagnosis and treatment depend on skilled patient assessments. Even though patients/parents may be unreliable historians, complaints are the first opportunity to gather information.
  6. Train office staff to be attuned to calls and concerns voiced by the parents of patients who have recently had surgery. Infections can be difficult to diagnose, especially following surgery. Physicians are often contacted when patients are unable to determine whether symptoms are a normal part of recovery or complications that need medical assistance. A call may be the first opportunity to intervene in a life-threatening condition.
  7. Document clinical exams and histories clearly.
  8. Document the details—including any follow-up instructions—when telephone advice is given by physicians or clinical staff.
  9. Develop a clear policy on tracking diagnostic tests and referrals. Patients do not always follow instructions or diagnostic test orders. The tracking process alerts staff and physicians when test results or referrals have not been received, possibly saving patients’ lives and protecting physicians from malpractice claims.
  10. Evaluate parents’ understanding of the treatment plan, follow-up care, or medication plan. Nonadherence may not always be willful resistance. Often, parents don’t understand discharge instructions, or they fail to receive adequate instructions. Consider using the teach-back or show-back method. Provide written instructions in a language the parents can read.
  11. Ask parents about their intentions to follow instructions or purchase medications. An inability to pay for medications or follow-up appointments may impede care and treatment. Asking questions creates opportunities to understand the parents’ level of understanding and any concerns about affordability. If parents admit they have a limited ability to pay for medications or follow-up appointments, provide a list of community services to help the patient receive needed treatment.

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A patient safety risk manager is always available to provide industry-leading expertise. For more information, call (800) 421-2368 or contact us by email.

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.

J11800 03/19