Failure to diagnose is the No. 1 allegation in liability lawsuits

A physician's failure to diagnose tops the chart as the most common allegation in medical liability lawsuits, according to a February study that has prompted some risk management experts to warn physicians that defensive medicine is their best protection.

Medical liability insurer ProMutual Group found that errors in diagnosis were the leading allegations in 38.9% of closed claims analyzed in seven specialties between 2002 and 2004. In family medicine, internal medicine, pediatrics and radiology, more than 50% of lawsuits alleged a failure to diagnose.

The study, the first time the insurer has taken a combined look at seven specialties, further found that undetected cancer was involved in 47% of the failure to diagnose claims. Thus, cancer was most often involved in lawsuits.

The medical community says that it has watched the trend arise from a faster-paced health care environment, where communication with patients often suffers. High damage awards, in turn, create an atmosphere that contributes to the lawsuits being filed more often, according to doctors and risk management experts.

Maureen Mondor, RN, vice president of risk management for ProMutual, which operates in the Northeast, said that "doctors have to close the loop and work more closely with their patients and specialists," even if there is more pressure to see patients faster.

A majority of misdiagnosis claims could be traced back to a lack of patient history and a lack of follow-up, whether on a test, a referral or missed appointment, said Mondor. She said part of the challenge for physicians is that they are often dealing with patients who don't seek regular treatment, so too much time lapses between visits. She also said patients aren't proactive about following through with doctors' orders.

"But the onus comes back on the physician, who has the responsibility," from a litigation standpoint, to track his or her patients, Mondor said.

Protecting yourself

ProMutual's study jibes with national research by the Physician Insurers Assn. of America. Failure to diagnose is "the highest [number of claims filed] we see in nonsurgical specialties," said PIAA's research director Lisa Bartholomew."By and large, the payments made in [failure to diagnose] cases are higher than anything else," Bartholomew added.

It's what Leonard Berlin, MD, an Illinois radiologist and chair of the American College of Radiology's ethics committee, calls the "lottery mentality," as the volume of such cases persists and the severity of damage awards has jumped.

Dr. Berlin, who has also published research on radiological errors and medical liability in Illinois, concurred with ProMutual's study findings that breast, colorectal, lung and prostate cancer, respectively, were responsible for the majority of misdiagnosis cases across all specialties.

Internists, ob-gyns and family doctors are often the first point of entry for patients seeking a diagnosis, said Dr. Berlin, who practices at Rush North Shore Medical Center in suburban Chicago. "The standard of care in medical malpractice is a failure by physicians to use 'reasonable' judgment, but the public expects it to be perfect," he said.

Doctors agree the prevalence of failure to diagnose claims has spurred discussion on preventive techniques for avoiding errors.

"It's not only good for doctors to reduce their malpractice risk, but it's just good medicine," said Gary McAbee, DO, chair of the American Academy of Pediatrics' committee on medical liability and risk management.

Dr. McAbee emphasized the importance of taking an appropriate clinical history of patients, which all too often falls by the wayside when doctors are dealing with a high volume of cases.

With high-risk patients, he recommends putting notes on the front of the charts, "so doctors are reminded at every visit that the patient should be assessed for risk."

Taking patient history is especially crucial in detecting cancer, Dr. Berlin said.

If doctors are pressed for time, ProMutual's Mondor recommends sending out a questionnaire for patients to periodically update with their history, medications and areas of concern.

Documentation and follow-up are key risk management procedures, she said. Many physicians will discuss a problem or a complaint with a patient, Mondor said, but if the patient doesn't follow up on a test or a referral, "at least the doctor has gone on record that he had the discussion."

Family doctors and internists especially, when they are unsure, should refer patients to specialists, "and cancer should be a first, not a last, consideration," she warned.