Advanced practice providers (APPs) get sued for the same issues as physicians do with only small exceptions in the higher risk surgical specialties where they do not perform the actual technical procedures. They often are responsible for recognizing complications and are the first line to rescue those patients from those complications. There is no strong data yet available comparing the risk of APPs to physicians or comparing the relative risks of the different licensures of APPs: APRNs (NP, CNS, CNM, CRNA vs. PAs, etc.). Historically, plaintiffs sued the supervising physician, and often the liability carriers’ data on the loss attributed the loss to the primary responsible physician; there was no allocation of the relative contribution of the APP to the adverse outcome. Furthermore, collection of the numbers of APPs, their clinical activity, and their risks was also inadequate to answer the relative risk questions within the groups of APPs or comparing APPs to physicians.
For physicians, hospitals and their staff, and for APPs, malpractice claims risk is highly concentrated in several clinical areas. The highest risk specialties are OB-GYN, neurosurgery, ortho spine, and general surgery. There are four elements—duty, negligence, causation, and damages—that each must be established to the threshold of “a preponderance of evidence” (more likely than not) by the plaintiff in order to prevail in a civil liability case. The rules can vary by the care site and facts in some states. In all states, the most attractive plaintiff cases are high damage cases with high dollar reward possibilities, coupled with clear duty, causation, and a simpler explanation to establish negligence.
While documentation, relationships and communication with patients and families, and paying attention to strong patient safety systems are important to overall patient care, to really impact malpractice claims losses and maintain a stable and affordable liability environment one needs to understand the highest risk areas and develop strategies to address them.
Cognitive, Non-procedural Specialties
We’ve grouped the specialties into cognitive, non- or less procedurally driven ones, and those specialties where activity and claims are mostly procedural. In this article, we take a high-level view of the conditions driving the losses for a specialty or group of specialties for cognitive, non-procedural specialties.
The major allegation driving the vast majority of claims losses for cognitive specialties is for the allegation of failure to diagnose or delay in diagnosis of certain conditions.
1. Failure/Delay in Diagnosis of Acute Neurologic Conditions
While historically this was not the highest risk clinical presentation, the trends in the liability climate now clearly put it at the top. The conditions included here are:
- Acute CVA
- SAH
- Traumatic subdural
- Intracranial venous structure thrombosis
- Space occupying spinal cord lesions including spinal epidural abscess, acute HNP, and spinal cord hematoma
Strategies
- A thoughtful, careful, and well documented neurological exam. Too often we see brief, poorly performed, and/or poorly documented neuro exams that do not provide detail or adequate defense for the failure to diagnose these conditions in a timely manner. For example, space occupying spinal cord lesions often have true bilateral distal neurologic findings that are only recognized when the patient’s condition of paralysis or severe impairment is too late for intervention. Neuro exams are often limited to describing the function of the anterior circulation only, and there is no discussion or apparent examination of posterior or brainstem functions: visual fields, nystagmus and skew, balance/ataxia, proprioception, coordination, drift and movement, detailed cranial nerves, etc.
- A reliance solely on imaging to establish the diagnosis. Often the clinical history is either insufficient or inaccurate to assist the radiologist to make the diagnosis on the images ordered, or the test ordered itself is inadequate to make the diagnosis, and further studies are needed.
- A careful discussion of the risks, benefits, and alternatives to a given therapy or intervention. Patients and families might develop unrealistic expectations of positive outcomes, and that develops into dissatisfaction and seeking legal redress when adverse outcomes occur.
2. Failure/Delay in Diagnosis of Acute Chest Pain
The presentation in any clinical setting—office, urgent care, or emergency department—of acute chest pain, shortness of breath or associated atypical symptoms results in the next most costly and common category of high-risk diagnoses associated with failure or delay in diagnosis driving the majority of the total losses incurred in liability claims for cognitive providers. These diagnoses are:
- Acute unstable coronary artery disease and MI
- Pulmonary Embolism
- Aortic Dissection
Strategies
- A low threshold to consider these diagnoses, and a thoughtful discussion of the workup or reasons not to work up the patient for these. As liability cases employ a retrospective bias, it is important, when possible, to explain your reasonable thought process. Documentation of that reasonable thought process and informed decision making by the patient is especially important in the office setting where not every patient can or should have a comprehensive evaluation for the above diagnoses.
- A discussion of the risk factors and reasons to seek a higher level of care. This can be problematic, as the next presentation for these conditions can be an acute arrest or death, and no reasonable return precautions can prevent that.
- Use of standardized tools to stratify the risk of each of these presentations. Examples are the HEART score, the Wells Criteria, and close attention to risk factors and vital signs.
3. Failure/Delay in Diagnosis of Sepsis and Severe Infectious Diseases
A very common presentation in any clinical setting—office, urgent care, or emergency department—are signs and symptoms that could be suggestive of sepsis or severe infectious diseases. This next most costly and common category of high-risk diagnoses associated with failure or delay in diagnosis driving the majority of the total losses incurred in liability claims for cognitive providers includes the following diagnoses and strategies:
- Pediatric fever, especially very young patients
- High-risk patients who have low reserves to combat acute infections
- Unusual and severe infections such as necrotizing fasciitis, spinal abscesses, intrabdominal abscesses, meningitis/encephalitis, and septic arthritis.
- Patients with prolonged and deteriorating clinical presentations consistent with bacteremia, sepsis and/or severe infections
Strategies
- Similar to the chest pain discussion, a low threshold to consider these diagnoses, and a thoughtful discussion of the workup or reasons not to work up the patient for these. As liability cases employ a retrospective bias, it is important, when possible, to explain your reasonable thought process. Documentation of that reasonable thought process and informed decision making by the patient is especially important in the office setting where not every patient can or should have a comprehensive evaluation for the above diagnoses.
- Pay attention to abnormal vital signs. You don’t have to admit all abnormal vital sign patients, but you need to follow them, explain them, and continuously evaluate them. This implies close term follow-up examinations and rechecks. Also recall that it is not just pulse and BP, a rapid respiratory rate with a normal pulse ox should make you think of an underlying metabolic acidosis that the patient is attempting to correct via that respiratory response.
- A discussion of the risk factors and reasons to seek a higher level of care. As opposed to the acute chest pain described above, you generally have the ability to re-examine these patients over the next hours to days and to intervene appropriately when there’s a lack of response. The best diagnostic test could be a clinical recheck in 24 hours or less for those you do not admit.
- Young patients have high reserves until they don’t. Recognize the signs of deterioration and anticipate them.
4. Failure/Delay in Diagnosis of the Acute Abdomen
A very common presentation in any clinical setting—office, urgent care, or emergency department—are signs and symptoms that could be suggestive of an acute abdomen. Fortunately, most patients who present with abdominal pain, vomiting, GI distress, weakness or subtle signs do not have an acute abdomen. However, this next most costly and common category of high-risk diagnoses associated with failure or delay in diagnosis driving the majority of the total losses incurred in liability claims for cognitive providers includes the following diagnoses and strategies:
- Intra-abdominal infections: perforations, abscess, appendicitis
- Post abdominal surgical procedural complications: especially recent laparoscopic procedures, or any history of bariatric surgical procedures
- Adolescent males with testicular torsion
- Intestinal ischemic, infarction and herniation
- Patients with prolonged and deteriorating clinical presentations consistent with an evolving acute abdomen
Strategies
- Similar to the chest pain discussion, a low threshold to consider these diagnoses, and a thoughtful discussion of the workup or reasons not to work up the patient for these. As liability cases employ a retrospective bias, it is important, when possible, to explain your reasonable thought process. Documentation of that reasonable thought process and informed decision making by the patient is especially important in the office setting where not every patient can or should have a comprehensive evaluation for the above diagnoses.
- Refer for imaging or surgical consultation when your clinical threshold is reached. These studies and referrals need to be done timely and rapidly. We often see cases where the plan was appropriate, but the execution of that plan was too slow to intervene in acute abdomen.
- Pay attention to abnormal vital signs. You don’t have to admit all abnormal vital sign patients, but you need to follow them, explain them, and continuously evaluate them. This implies close term follow-up examinations and rechecks. Also recall that it is not just pulse and BP, a rapid respiratory rate with a normal pulse ox should make you think of an underlying metabolic acidosis that the patient is attempting to correct via that respiratory response.
- A discussion of the risk factors and reasons to seek a higher level of care. As opposed to the acute chest pain described above, you generally have the ability to re-examine these patients over the next hours to days and to intervene appropriately when there’s a lack of response. The best diagnostic test could be a clinical recheck in 24 hours or less for those you do not admit.
- Young patients have high reserves until they don’t. Recognize the signs of deterioration and anticipate them.
5. Failure/Delay in Diagnosis of Malignancies
This is the only high-risk diagnostic failure or delay clinical area that does not involve an acute presentation. While not all malignancies can be timely diagnosed, and in some instances the initial presentation will always be late stage with an adverse prognosis, the liability claims cluster around certain diagnoses. These are in order of their prevalence in the aforementioned cost of claims analysis:
- Colorectal cancer, especially younger patients and patients with signs or symptoms that are attributed in error over long periods of time to benign causes
- Lung cancer, especially those patients who have had incidental findings noted on imaging studies done for other indications but who now retrospectively could or should have had their diagnosis established earlier
- Breast cancer: this historically was the most common liability claim of all failure to or delay in diagnosis, and is a true success story as breast imaging centers staffed by expert teams who provide detailed and sequential diagnostic studies and ensure that follow-up of patients is completed
- Malignant melanoma, especially lesions that are not classic, or are overlooked, inappropriately treated without definitive tissue pathology, or are lost to follow-up
- Prostate: the high-risk patient, with lab markers indicating risk, which are lost to follow-up.
Strategies
Most of the strategies are likely obvious when one understands the above diagnoses that are being missed, but common patterns include:
- Discussion and informed refusal when patients choose not to follow recommended screening and intervals
- Documented close clinical follow-up of all incidental findings on imaging.
- Closing the loop 100% on all diagnostic pathology
- Recognition that persistent signs and symptoms might be something more serious, especially with CRC and GI cancers
Information in this article is for general educational purposes and is not intended to establish practice guidelines or provide legal advice.
Article originally published in 3Q24 Advantage Program Insight.
