Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Medical Malpractice Law & StrategyFeaturesKickerLJN NewslettersNewsSections

Failure to Diagnose

By Maxwell S. (Max) Kennerly
September 02, 2014

The “bread and butter” of medical malpractice litigation is the failure to diagnose a case. According to the data from the National Practitioner Data Bank, failure-to-diagnose claims (one variant of which is “misdiagnosis”) accounted for a third of all malpractice payouts, the highest of any category. In some specialties, the figures reflect the national data ' failure to diagnose accounts for a little over a third of emergency medicine malpractice claims (Brown TW, et al., An Epidemiologic Study of Closed Emergency Department Malpractice Claims in a National Database of Physician Malpractice Insurers. Acad Emerg Med. 2010 May;17(5):553-60, http://1.usa.gov/1ri9MZW). But in others, the failure to diagnose is pretty much the only show in town. Diagnosis errors account for over 70% of primary care malpractice claims. Schiff, G.D., et al., Primary Care Closed Claims Experience of Massachusetts Malpractice Insurers. JAMA Intern. Med . 2013 Dec 9-23;173(22):2063-8. http://1.usa.gov/1r5ecrY.

Failure to diagnose is also, perhaps, the most controversial type of malpractice claim. Politically, it is the most common reason given for assertions of “defensive medicine.” Personally, it appears ' in my anecdotal experience, at least ' to be the type of claim doctors themselves focus on the most when they complain about medical malpractice. It just seems so unfair, they say, to be judged for getting a diagnosis wrong after the fact if they put in a good-faith effort. “Hindsight is 20/20,” and so on and so forth; my favorite medical description of making a diagnosis with the benefit of hindsight is “using the retrospectroscope.”

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It Image

Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?

Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.

The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

A Lawyer's System for Active Reading Image

Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.

Protecting Innovation in the Cyber World from Patent Trolls Image

With trillions of dollars to keep watch over, the last thing we need is the distraction of costly litigation brought on by patent assertion entities (PAEs or "patent trolls"), companies that don't make any products but instead seek royalties by asserting their patents against those who do make products.