The Doctor’s Advocate | First Quarter 2019
An Ounce of Prevention
Preview Our Study of Malpractice Claims Involving Children
The study of pediatric claims presents complex challenges. Pediatric patients are treated by a wide variety of physician specialties, and 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.
Study Parameters and Claim Indemnity
We studied claims* filed on behalf of pediatric patients that closed over a 10-year period from 2008 through 2017. We included a total of 1,215 claims and lawsuits.
We focused on four age groups: neonate (less than one month old), first-year (one month through 11 months), child (one through nine years), and teenager (10 through 17 years). We included all claims and lawsuits except dental claims, regardless of how the cases were resolved (denied, settled, or judgment at trial).
Pediatric Claim and Lawsuit Payments
Of the 1,215 claims in the study, 446 (37 percent) resulted in a payment to the claimant. As shown in FIGURE 1, the mean indemnity payment was $630,456, and the mean expense was $157,592. 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 paid to defend these cases was also the highest ($187,117), as was the median expense paid ($119,311).
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.
The pediatric patients represented in these claims and lawsuits were treated by a variety of 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 for children older than one month of age.
As illustrated in FIGURE 2, the top 10 physician specialties named as defendants in claims filed on behalf of pediatric patients represented 72 percent of the total claims.
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. (See FIGURE 3.) 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.
Our experience indicates that 3 percent of pediatric claims were filed more than 10 years after the event. This highlights the importance of quality documentation. The quality of the medical record can be a significant factor in defending a claim that is filed years later.
Studying allegations helps us understand issues that prompt a claimant/plaintiff to file a claim or lawsuit. Because of the variation in development between neonates and teenagers, we divided the claims and lawsuits into age groups. FIGURES 4, 5, 6, and 7 outline the allegations for the individual groups. 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.
For patients in their first year of life, 3 percent of the cases included allegations related to obstetrical treatment.
For children ages one through nine, less than 1 percent of cases involved obstetrical care.
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.
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.
Factors Contributing to Patient Injury
The most common factor contributing to injury in neonatal pediatric patients was selection and management of therapy. This issue refers to decisions about vaginal birth versus cesarean section. For example: When a patient suffered a brachial plexus injury during vaginal delivery, physician reviewers found that the size of the neonate was not documented or discussed in the documentation. Other factors included patient assessment issues and lack of communication among providers.
The most common factors contributing to patient harm for age groups other than neonates were patient assessment issues and communication between the patient or family member and provider. Inadequate patient assessments were closely linked to incorrect diagnoses. Incomplete communication between patients or family members and providers affected clinicians’ ability to make correct diagnoses.
Risk Mitigation Strategies
- Become familiar with the National Institute of Child Health and Human Development nomenclature. Physicians and nurses should participate together in regular fetal monitoring learning activities.
- Respond without delay when a nurse requests a physician assessment.
- Conduct drills to ensure 30-minute response times for emergency cesarean section deliveries, and carry out simulations of low-frequency/high-severity obstetric emergencies (such as postpartum hemorrhage).
- 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.
For Children Ages One Month to 17 Years
- 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.
- 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. For children older than one month, the most common allegation was failure, delay, or wrong diagnosis. Inadequate patient assessments most commonly contributed to patient injury.
- 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 translations services if communication is difficult.
- 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.
These issues and additional data are addressed in more detail in our Study of Malpractice Claims Involving Children at thedoctors.com/childmedmalstudy.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
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.
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