Key points

Introduction

The most common reason for paid claims in pediatric emergency medicine (EM) is “errors in diagnosis,” accounting for 51% of paid claims, compared with 39% of paid claims in adult EM. This is not surprising, as one of our primary modalities of diagnosis, the patient history, ^, is impossible to obtain in preverbal patients and is instead acquired from parents, caregivers, or bystanders. Compounding the possibility for misdiagnosis further is that pediatric patients may present with subtle findings of serious disease, such as isolated tachycardia in myocarditis, or an intermittently well-appearing child with intussusception. Further, it may be easy to let our guard down after seeing numerous patients with self-limited diseases such as viral upper respiratory tract infections, nonsurgical abdominal pain, or acute viral gastroenteritis.

But there is a wide spectrum to “errors in diagnosis,” ranging from misdiagnosis of a self-limited disease with an exceedingly low risk of complications, such as strep pharyngitis, to misdiagnosis of a small bowel obstruction/perforated viscous, with potentially devastating consequences. The fact that a patient was misdiagnosed is not predictive that a lawsuit will be filed… or lost. Glerum and colleagues looked at 728 closed claims in a pediatric EM or urgent care setting, finding that money was paid in only 30% of all cases, with claims involving a major permanent injury more often resulting in a payment; as it turns out, 63% of filed claims were dropped, withdrawn, or dismissed (457 of 728).

Patient categories

In many ways, the legally riskiest patient is not the obviously ill patient, such as a pediatric arrest or the child with altered consciousness and hypotension, but the initially well-appearing patient who has life-threatening underlying disease. Consider 3 categories of EM patients:

• 1.
  

  The straightforward patient: This is the most common pediatric patient in many emergency departments (EDs). Presentations range from symptoms easily diagnosed and managed, such as fractures or lacerations, to benign/self-limited illness presenting because of lack of access to primary care, because of a worried parent, or for expediency. Although acute viral gastroenteritis or muscle strains might not be the most satisfying encounters to clinicians working in an emergency department, our interactions are still important; reassurance is a part of healing.

  
  
• 2.
  

  The sick patient: This is why many clinicians chose EM as a career; the opportunity to help the critically ill patient. Although this can be a stressful situation for clinicians who infrequently encounter sick children, the legal risk is mitigated by the fact that almost none of these patients will be erroneously discharged. Still, timely and appropriate care are important to ensuring patient safety and preventing malpractice.

  
  
• 3.
  

  The patient with diagnostic uncertainty: Patients masquerading with benign disease represent the biggest risk to misdiagnosis, ED discharge, and a potentially ensuing legal misadventure. At the bedside, we need to “thread the needle” between the risk of missing serious disease and the potential for harm and expense from false positive tests. Compounding the difficulty is that patients are often unable to accurately describe their symptoms, and parents may have a difficult time recounting an accurate past history and medications. In addition, some pediatric illnesses, such as acute appendicitis, may have initially innocuous symptoms, and rare diagnoses, such as congenital cardiac abnormalities, are seen so infrequently that clinicians may not be comfortable with diagnosis or management.

“Fast thinking,” as described by Daniel Kahneman, often serves us well in the ED. As human beings, we are comfortable recognizing patterns, and as ED physicians, the ability to quickly recognize life-threatening patterns such as cyanosis or respiratory distress enables us to quickly provide emergent life-saving interventions. However, these very skills, which normally serve us well, can also fool us in well-appearing patients with serious illness. We find ourselves swimming in a sea of the worried-well, which paradoxically causes us to worry less .

If it’s not in our differential, it won’t be in our diagnosis

Care of the pediatric EM patient is performed in varied settings, from community hospitals to dedicated pediatric EDs. Paradoxically, rural community medicine physicians may have more ongoing pediatric experience after training than those in urban settings, where most patients will present to a dedicated Children’s Hospital; clinicians who infrequently see pediatric patients or perform procedures on pediatric patients are at risk for a deterioration in skills. ^,

A history that is acceptable for an adult, may be grossly inadequate for a child. Consider the case of a 12-year-old girl who presented to an adult ED 3 times with back pain, which was initially diagnosed as a muscle strain, then as a urinary tract infection, and finally on the third visit when she had concomitant urinary retention, an examination discovered hematocolpos. Whereas life-threatening back pain in adults may be from an abdominal aortic aneurysm, an epidural compression syndrome, pancreatitis, or renal mass, back pain in children can include some of these, but diagnoses such as congenital conditions, scoliosis, infection, inflammatory disease, child abuse, and neoplasm should be considered and prioritized. A pediatric-specific history is essential to establishing the diagnosis.

Chest pain in children also includes a unique differential. Not only are typical “can’t miss” diagnoses, such as acute coronary syndrome, pulmonary embolism, and thoracic aortic dissection, considered, but myocarditis, pericarditis, congenital heart disease, and pneumonia as well.

Pediatric-specific questions vary based on the child’s age but may include the following:

• 1.
  

  Birth history including prematurity or infections present at birth such as human immunodeficiency virus, herpes, or strep B, toxoplasmosis

  
  
• 2.
  

  Congenital abnormalities or inborn errors of metabolism

  
  
• 3.
  

  Maternal perinatal substance use

  
  
• 4.
  

  Social history including socioeconomic status, marital status of parent(s), siblings, custodial issues, and substance abuse

  
  
• 5.
  

  History specific to adolescents, such as menstrual history, sexual history, school performance, and substance abuse

A 2-minute legal primer

Malpractice requires 4 elements:

• 1.
  

  The physician has a duty

  
  
• 2.
  

  The physician breached the duty (standard of care)

  
  
• 3.
  

  There was harm

  
  
• 4.
  

  The harm was caused by the breach of duty (causation/proximate cause)

Duty and harm (preceding items 1 and 3) are typically easy to prove; it is not hard to substantiate that the physician was working (although this could be complicated by handoffs, change of shift, supervision of residents or midlevel providers, or “shot gunning” initial testing) and that there was harm, especially if a patient died (although there are gradations based on age, potential future earning, immediate harm with potential for recovery, degree of harm, and emotional damage).

But usually a malpractice action is dependent on preceding items 2 and 4; to prove that there was a “breach of duty” (standard of care) and that the clinicians actions were what caused (or failed to arrest) the patient’s harm (causation/proximate cause). Of note, the “burden of proof” (as follows) is on the plaintiff attorney.

• •
  

  Burden of proof: The plaintiff must prove by the greater weight of the evidence that the defendant was negligent, that the defendant’s negligence was a direct and proximate cause of the plaintiff’s injuries, and that the plaintiff was damaged by the defendant’s negligence.

  
  
• •
  

  Standard of care: The standard of care is to do those things in like or similar circumstances that a reasonably careful physician with like or similar training would do and to refrain from doing those things that a reasonably careful physician would not do.

  
  
• •
  

  Proximate cause: To prevail, the plaintiff must not only prove that the physician fell below the standard of care and was therefore negligent, but that the negligence was a direct and proximate cause of injury to the plaintiff. This includes failure to provide therapy (or provide it in a timely manner), which may have proximately improved the patient’s symptoms.

Common causes of pediatric emergency medicine malpractice

Based on a review of claims to the Physician Insurers Association of America (PIAA) database between 2001 and 2015, the following are the 5 most common causes of pediatric EM malpractice:

• 1.
  

  Cardiac or cardiorespiratory arrest

  
  
• 2.
  

  Appendicitis

  
  
• 3.
  

  Disorder of male genital organs

  
  
• 4.
  

  Encephalopathy (not further defined)

  
  
• 5.
  

  Meningitis

These are similar to claims from a previous review of PIAA claims from 1985 to 2000, which found the top 5 claims to be the following :

• 1.
  

  Meningitis

  
  
• 2.
  

  Appendicitis

  
  
• 3.
  

  Fracture of humerus

  
  
• 4.
  

  Fracture of radius/ulna

  
  
• 5.
  

  Testicular torsion

Both are similar to a review of claims in general pediatric practice that were caused by an error in diagnosis as described by McAbee and colleagues in an analysis of the PIAA database from 1985 to 2006:

• 1.
  

  Meningitis

  
  
• 2.
  

  Appendicitis

  
  
• 3.
  

  Specified nonteratogenic anomalies

  
  
• 4.
  

  Pneumonia

  
  
• 5.
  

  Brain-damaged infant

Not surprisingly, in cases of missed diagnoses, the presenting symptoms were often vague. For example, the top 5 presenting symptoms in cases of missed meningitis included fever, nausea/vomiting, lethargy, headache, and influenza symptoms, with an initial diagnosis in 36% of cases being viral infection/influenza, 25% being “other” diagnoses, 12% being otitis media, and only 12% actually being meningitis.

A “deep dive” into acute appendicitis and testicular torsion litigation and opportunities for improvement

Why do we miss serious disease?

Pat Croskerry, a Canadian Emergency Medicine physician, has described cognitive dispositions to respond (CDRs), which are thought-making shortcuts. These often serve us well in a busy ED, but may sometimes lead us astray. Some of the best known are diagnosis momentum (a previous diagnosis becomes established without adequate evidence) and anchoring bias (where the clinician fixates on a specific feature of the presentation too early in the diagnostic process, causing the thought process to become “anchored” to that feature).

Although we are unaware of definitive evidence of increased patient safety or decreased malpractice risk, some CDRs that may be specifically important to consider in the evaluation of children, include the following:

• •
  

  Availability bias: The tendency for diagnoses to be judged more likely if they occur frequently.

  
  
  
  
  • ○
    

    Example: Patients who present with fever and cough are most likely to have a benign viral infection, but diagnoses such as pneumonia and sepsis should be considered in the differential.

  
  
  
  
• •
  

  Triage cuing: Placing undue concern or insufficient concern on a complaint/patient based on the triage assessment.

  
  
  
  
  • ○
    

    Example: A young patient with a head injury is placed in the trauma room and gets a computed tomography scan based on bed placement, not risk stratification and Pediatric Emergency Care Applied Research Network criteria.

  
  
  
  
• •
  

  Zebra retreat: A rare diagnosis figures prominently in the differential, but the provider “retreats,” resulting in missed or delayed diagnosis

  
  
  
  
  • ○
    

    A patient with “pain out of proportion” is diagnosed with a strain, without consideration of a necrotizing soft tissue infection

  
  

Consider the concept of “meta-cognition” in which we monitor our own thought-making processes, so as to realize when they are most prone to error. If potential errors are appreciated, we can apply “cognitive debiasing,” to avoid falling into the trap of a CDR. ^,

How much money is paid in pediatric medical malpractice and where does it go? The stats

Glerum and colleagues looked at 135,460 claims and lawsuits closed between 2001 and 2015 and identified 8281 children, of which 728 were seen in an ED or urgent care.

• •
  

  Major injury or death: Patients with a significant permanent injury, major permanent injury, grave injury, or death comprised 368 (51%) of 728 of the total. Of these claims, 120 (32.6%) of 368 paid money with payments ranging from $249,000 to $924,000.

  
  
• •
  

  Minor injury (permanent or not permanent): Patients with a minor permanent injury, major temporary injury, minor temporary injury, insignificant or emotional injury only, comprised 320 (49%) of 728 of the total. Of these, 100 (28%) of 360 paid money with payments ranging from $46,000 to $271,000.

  
  
• •
  

  Of the total 728 claims, 457 (63%) of 728 were dropped, withdrawn, or dismissed and 170 (23%) of 728 were settled.

  
  
• •
  

  Of the total, only 6% went to trial, with 47 deciding for the defendant and 10 for the plaintiff (30 had an alternative resolution and 5 were unable to be determined).

  
  
• •
  

  Average costs for defense of a case going to trial was $144,000 to $154,000, for cases settled the cost was $67,000. For those cases dropped, withdrawn, or dismissed, the average defense cost was $24,000.

Pediatric medical malpractice impact on the provider

Our biggest concern with failure and delay of diagnosis cases are the often devastating impact on the patient and their family. But there is also an impact on the clinician, which can sometimes be just as damaging, as the biggest contributing stressor of physicians who commit suicide is a “job problem” with legal problems being one component.

Consider the case of a 5-year-old boy who presented to the ED with fever and abdominal pain and vomiting with a negative evaluation for appendicitis or surgical abdominal etiology, but who later in the ED visit developed a headache and underwent a lumbar puncture. Results showed a minimally increased cerebrospinal fluid (CSF) WBC of 8 (0–5) and red blood cell (RBC) count of 281 (0–5), which was clear and colorless with no organisms seen on microscopy. The patient was discharged ambulatory at 21:30. At 5:30 the next morning the parents were aroused by a loud noise and found their child to be unresponsive; when EMS arrived they found the patient to be seizing. On arrival to the ED 14 minutes later, the patient was diagnosed with meningitis, started on intravenous (IV) antibiotics and admitted. The patient arrested the next morning in the intensive care unit and was unable to be resuscitated. A legal action ensued…

An interview with this board-certified EM physician revealed the deep hurt that can ensue after an adverse outcome, to the point of impacting future ED work, the physician’s family, and their own mental health to the point of consideration of suicide.

Note: Reproduced with permission granted by Anadem Publishing, Inc. on November 26, 2020.

Do you remember this child and your thought process at the time of initial evaluation?

I saw Ty, 5 years old, with both parents on a busy Sunday late afternoon. I had been called in early as my partner physician was not known to handle high volume well. Ty was in bed 18 for fever and abdominal pain. After completing the H&P and examination, while doing the dictation, a “caution-reset light” came on in my medical decision making. I teach students now to do their documentation real-time as I’ve often had these “caution-reset” intuitions during the documentation process. These “caution-reset” intuitions are to be heeded, always.

Ty’s mental status had seemed a little subdued for a 5-year-old boy. His parents stated this had occurred before when Ty had had acetaminophen. With some discussion they consented to lumbar puncture. This required IV sedation with midazolam and fentanyl. CSF came back 262 RBC, 8 WBC. I reasoned this was so low that bacterial meningitis had been ruled out. Ty recovered nicely from sedation and walked out of the department with Mom and Dad. I had no more “caution-reset” thoughts, what with minimal suspicion for bacterial meningitis in the first place, I was confident this CSF result had excluded it from the differential diagnosis. I went on to help move more patients.

How did this affect you and your family?

It hurt so long and so hard I feared for my mental health and ability to work and take care of my wife and children. I considered suicide. Listening to “Risk Management Monthly” I learned some docs have done so. I remember reasoning that if I had already caused so much pain, then my suicide would just cause more. It was like falling down an elevator shaft that never ends. To resort to popular culture references it was like the scene in “Top Gun” when the engines have flamed out, they are in a flat spin, the warning buzzer is sounding and Goose is saying his last words “altitude 7,000, 6,000 this is not good, this is not good.”

I remember being in an evening church dinner a year after Ty’s death, children were singing on stage. It was a December rain outside. I had to step out, overcome by thoughts of these children, including my own, singing, while cold rain pelted Ty’s grave. It is better now—I write if it may help any reader who has been or may be in similar straits. I sought help after my wife, finally exhausted after 2 years of this, said “You are stuck on that dead child—you have children of your own to take care of!” My wife later said it was like I was emotionally absent for years. I sought a counselor known for working with stressed police and fire-fighters. She said I had posttraumatic stress disorder. Cognitive therapy and EMDR (Eye Movement Desensitization Response) helped. Fifteen years have helped.

Clinics care points: a top 10 list to decrease medical legal risk

• 10.
  

  Correlate the chief complaint with the “question” being asked by the patient’s presentation.

  
  
• 9.
  

  Resolve discrepancies in the chief complaint by speaking with the staff who recorded the chief complaint, by getting more information from the parent, and specifically addressing any differences in the medical decision-making (MDM) section.

  
  
• 8.
  

  Ensure the history of present illness section is the history of present illness. It is fine to put past history and review of systems in this “box,” but it needs to include a history of the present illness; we need to obtain appropriate data on which to base our decisions.

  
  
• 7.
  

  Record a pediatric-specific review of systems, and social and family history.

  
  
• 6.
  

  Physical examination: Be descriptive! When a case goes to trial, it is much more difficult to defend a 2-year-old with abdominal pain who is “Alert and Oriented X 3” than a patient who “is active and engaged, smiling, and running down the hall laughing while the parent chases behind.”

  
  
• 5.
  

  Document the physical examination objectively; while it may be easier to document a diagnosis such as “poison ivy” or “cellulitis,” an objective description of the examination may pay dividends later in court when the actual diagnosis turns out to be an atypical presentation of chicken pox or a necrotizing soft tissue infection that is, “there is a 4-cm area of erythema on the inner left leg and there is no ecchymosis, necrosis, bullae, fluctuance, or crepitus.”

  
  
• 4.
  

  Focus the history and examination on the “rule-out” diagnosis; although it is OK to document a pupil examination on a patient with abdominal pain, the essential examination elements are inspection and palpation, as well as a genitourinary examination.

  
  
• 3.
  

  Use the MDM section as a “hard stop”; before completing the documentation ask yourself, “Does my medical decision making flow logically and have my actions excluded life-threatening illness? Would I be comfortable defending my care to the patient’s family, to the department chair, to a peer review committee, or to a jury?” If not, obtain additional data (history, examination, testing) and explain your actions more completely.

  
  
• 2.
  

  Aftercare instructions need to be action and time specific. In addition, the patient/parent should understand rare diagnoses that have not been conclusively excluded so they will know when and why to return.

  
  
• 1.
  

  Don’t practice defensive medicine, but evaluate and document in a way that is defensible.

Clinics care points

• •
  

  Correlate the chief complaint and final diagnosis.

  
  
• •
  

  Address abnormal findings, such as abnormal laboratory results or vital sign abnormalities, in an MDM note.

  
  
• •
  

  Evaluate the complaint and differential in a “pediatric-specific” fashion; the differential diagnosis for common EM complaints such as headache, chest pain, abdominal pain, and fever have distinct considerations in the pediatric population.

  
  
• •
  

  Be aware of atypical presentations of common diseases such as sepsis or meningitis, such as in infants.

  
  
• •
  

  Don’t practice defensive medicine, but evaluate and document in a way that is defensible.

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