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Failure to Diagnose
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.”
Often, when I read about or hear from a doctor raising concerns about liability for a failure to diagnose, his or her argument is the same: Medicine is mostly a bunch of guesswork, so unscientific and subjective that it cannot be judged. The doctors never say it that way, but the gist of this argument is that the mental steps taken by a doctor attempting to diagnose a patient simply cannot be reviewed in an objective manner because diagnosis is a form of gestalt, where the doctor uses intuition to tie together disparate symptoms in an ineffable way. When I tell them, “That's malpractice ' you should use the differential diagnosis,” they're fit to be tied.
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