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SPECIAL ARTICLE

Medical Diagnoses Commonly Associated With Pediatric Malpractice Lawsuits in the United States

Gary N. McAbee, DO, JDa, Steven M. Donn, MDb, Robert A. Mendelson, MDc, William M. McDonnell, MD, JDd, Jose L. Gonzalez, MD, JDe, Julie Kersten Ake, BAf

aDivision of Child Neurology, Department of Pediatrics, Robert Wood Johnson School of Medicine, Camden, New Jersey; bDivision of Neonatal-Perinatal Medicine, Department of Pediatrics, University of Michigan Health System, Ann Arbor, Michigan; cPrivate Pediatric Practice, Portland, Oregon; dDivision of Pediatric Emergency Medicine, Department of Pediatrics, University of Utah School of Medicine, Salt Lake City, Utah; eDivisions of Pediatric Endocrinology and Medical Education, Department of Pediatrics, University of Texas Medical Branch at Galveston, Galveston, Texas; fDivision of Health Care Finance and Quality Improvement, American Academy of Pediatrics, Elk Grove Village, Illinois

The authors have indicated they have no financial relationships relevant to this article to disclose.

Medicine is a calling. Medicine is a profession. Medicine is a business. People in business get sued. Gary N. McAbee, DO, JD

ABSTRACT In this article we discuss the medical diagnoses underlying the most common lawsuits involving pediatricians in the United States. Where applicable, specific and general risk-management techniques are noted as a means of increasing patient safety and reducing the risk of medical malpractice exposure. Pediatrics 2008;122: e1282–e1286

www.pediatrics.org/cgi/doi/10.1542/ peds.2008-1594

doi:10.1542/peds.2008-1594

M EDICAL MALPRACTICE LITIGATION continues to be at a crisis level in 17 states.1 This level has declined from a peak of 22 states designated to be in crisis by the American Medical Association and, in part, represents the effort of tort reform in some regions of the country. There must be continual efforts to find ways to reduce pediatricians’ risks of medical malpractice litigation. Since 1989 the American Acad- emy of Pediatrics Annual Survey of Fellows has consistently found that nearly one third of all pediatricians will be sued during their careers.2 Pediatricians have a unique exposure to liability issues because of the severity of the indemnities paid in settlements and jury awards.

Two recent publications in Pediatrics addressed the malpractice situation as it relates to pediatrics. Kain and Caldwell-Andrews3 reviewed data from the National Practitioner Data Bank and noted significant variability within the United States regarding the incidence of malpractice payments and the median payment amount. Carroll and Buddenbaum4 reviewed data from the Physician Insurers Association of America (PIAA), a trade association of medical malpractice insurance companies in the United States. Their review noted, in part, that although only 28% of lawsuits resulted in an indemnity, the cost of defending these suits was alarmingly high: mean defense costs were $28 779 for cases in which no indemnity was paid and $67 502 for paid claims. Pediatrics was the fourth highest among 28 specialties in terms of mean defense expenses.

The authors are members of the 2007– 2008 American Academy of Pediatrics Committee on Medical Liability and Risk Management. The views expressed herein are those of the authors, and no official endorsement of the American Academy of Pediatrics is intended or inferred.

Key Words malpractice, pediatricians, medical diagnoses

Abbreviations PIAA—Physician Insurers Association of America DDH—developmental dysplasia of the hip CAP— community-acquired pneumonia

Accepted for publication Aug 11, 2008

Address correspondence to Gary N. McAbee, DO, JD, Children’s Regional Hospital at Cooper University Hospital, Department of Pediatrics, 3 Cooper Plaza, Suite 309, Camden, NJ 08103. E-mail: mcabee-gary@cooperhealth.edu

PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275). Copyright © 2008 by the American Academy of Pediatrics

The specific medical diagnoses that underlie the most common lawsuits involving pediatricians have not yet been systematically analyzed. This is important to practitioners, because the law is based on precedent and successful legal claims may encourage similar claims in the future. Thus, if an attorney is aware that a drug-induced adverse effect resulted in a large monetary settlement or verdict, it is likely that a lawsuit will be filed on behalf of a future client who presents with the same drug-induced adverse effect. If pediatricians are knowledgeable about the medical conditions that have produced successful malpractice suits, they can institute risk-management techniques that can be effective for both improving patient safety and reducing risk of liability. An excellent example of this is the American Society of Anesthesiologists (ASA). More than 20 years ago the ASA created its closed claims-analysis project. By instituting risk-management techniques to improve patient safety, anesthesiologists decreased their liability risk as a group from one of the most frequently sued specialties to a current rank of 20th of the 28 medical specialties listed.5

In this article we analyze data from the data-sharing project of the PIAA from the years 1985–2006.6 The medical conditions commonly associated with lawsuits against pediatricians were identified (see Table 1). The focus of this analysis relates to allegations of diagnostic errors, because this is the most common cause of action underlying the major medical misadventure in pediatric malpractice closed claims (see Table 2).4 Some risk-management techniques

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McABEE et al

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