Applied Evidence

Sued for misdiagnosis? It could happen to you

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Plaintiffs’ attorneys and patient safety advocates alike are increasingly focusing their attention on diagnostic errors. Here are the key pitfalls and ways to avoid them.




Create a problem list for each patient, including chronic and acute conditions, unexplained signs and symptoms, medications, and allergies. C

Avoid attributing every new symptom to the patient’s documented medical conditions. C

Develop and adhere to “don’t-miss” lists of signs and symptoms that warrant rapid action. C

Establish a fail-safe system to ensure that you receive notification whenever a final imaging or lab report differs from the preliminary report and document your response to each abnormal result. C

Strength of recommendation (SOR)

A Good-quality patient-oriented evidence
B Inconsistent or limited-quality patient-oriented evidence
C Consensus, usual practice, opinion, disease-oriented evidence, case series

Made a medical error? What to say to the patient

Misdiagnosis accounts for more malpractice claims than medication errors—indeed, for more lawsuits than any other medical misstep.1-5 Yet until recently, diagnostic errors garnered little attention from patient safety advocates.

That’s no longer the case. In 2007, the Agency for Healthcare Research and Quality (AHRQ) identified diagnostic errors (a catchall category encompassing delayed, incorrect, and missed diagnoses) as a problem that warranted closer study.6 The inaugural conference on Diagnostic Error in Medicine, cosponsored by AHRQ and the American Medical Informatics Association, took place in 2008. The third annual Diagnostic Error in Medicine conference will be held in Canada in October, reflecting the expanding focus on uncovering root causes of diagnostic error and developing preventive measures aimed at safeguarding patients and avoiding lawsuits.

Because diagnostic errors have long been underemphasized and understudied—and remain difficult to track—it is hard to know just how often they occur. Estimates of their frequency fluctuate widely from 1 study to another, but are generally in the range of 10% to 15%.7 Fatal illnesses appear to be misdiagnosed more frequently than less severe conditions: A review of more than 50 autopsy studies found that, on average, about 1 in 4 (23.5%) major diagnoses were missed.1

Whatever the numbers, diagnostic missteps are clearly common enough to be on patients’ radar screen. In a recent survey of US adults, 55% of respondents cited misdiagnosis as their greatest concern when they see a doctor in an outpatient setting.8 In a Harris Poll commissioned by the National Patient Safety Foundation9 several years earlier, 1 in 6 adults reported having had a condition that was misdiagnosed.

Evidence suggests that while years of experience and strong diagnostic skills help prevent diagnostic errors, they do not afford full protection against the cascade of events that can result in a serious diagnostic error. In fact, overconfidence may contribute to the problem.10,11

Lessons from court

Check out the 3 legal cases in the pages that follow from the files of John Davenport, MD, JD. Dr. Davenport, a medical malpractice attorney, provided legal representation in each of these cases.

The take-away message: No physician is immune to misdiagnosis or to a subsequent lawsuit. There are, however, steps you can take to safeguard your patients and yourself, but first you need to know where the pitfalls lie.

Misdiagnosis in primary care: What malpractice claims reveal

Diagnostic errors that result in malpractice claims undergo extensive legal review. Thus, they provide an excellent opportunity for analysis, as the authors of a study of 181 “closed,” or completed, claims from 4 malpractice insurers found.12 The errors all occurred in ambulatory settings, with primary care physicians most frequently involved.

Nearly 6 in 10 of the lawsuits were for missed or delayed cancer diagnoses, followed by misdiagnosis of infection, fracture, and myocardial infarction. Overall, 24% of the cases involved breast cancer. No other disorder came close.

The most common problems, or “breakdowns,” in the diagnostic process were:

  • failure to order the appropriate diagnostic test (which occurred in 55% of the cases)
  • failure to create a proper follow-up plan (45%)
  • failure to obtain a thorough medical history or to perform a thorough physical examination (42%).12

Notably, however, diagnostic errors rarely had a single cause. A median of 3 breakdowns per case was identified, and more than 4 in 10 cases involved more than 1 clinician.

Additional sources of breakdowns ran the gamut from patient factors (eg, non-compliance, atypical presentation, or a delay in seeking care) to system errors (eg, delay in seeing a test result, referral delay, or a mishandled handoff). Rarely was misdiagnosis attributed to a physician’s cognitive error alone. Most diagnostic errors, the authors reported, involved “a potent combination of individual and system factors.” 12


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