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Failure to Diagnose

By Maxwell S. (Max) Kennerly

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.”

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