Not All Diagnostic Errors Represent Malpractice, Speaker Says

May 4, 2016 | Strategic Insights for Health System


"It's easy to file a malpractice case when you have a diagnostic error," said Sean M. Gaynor, Esq., Leib Knott Gaynor, LLC, speaking April 29, 2016, at the Wisconsin Society for Healthcare Risk Management's spring conference. However, he emphasized, diagnostic error or a bad outcome does not in itself signify malpractice; rather, "the standard is, did you act reasonably?" he noted. Citing a 2014 study of medical malpractice claims, Gaynor noted that lapse in clinical judgment was the most common reason identified for diagnostic error, a factor that was present in 73% of cases. The most common such lapses were failure or delay in ordering a diagnostic test, misinterpretation of results, failure to establish a differential diagnosis, and failure or delay in obtaining a consultation or referral. Just over half (58%) of diagnostic errors occurred during the initial diagnostic assessment. However, 63% of the diagnosis-related cases that were closed resulted in no indemnity payment. "They're defensible cases under the law, and part of that has to do with how the law is written," said Gaynor, noting that the law recognizes that errors may occur in the practice of medicine. Gaynor offered strategies to prevent diagnostic errors and improve defensibility in the event of a claim.

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