Pediatrics: No Small Risk

Transcription

1 Fall 2005 : No Small Risk Paul Greve JD RPLU Senior Vice President Willis Healthcare Practice Introduction Pediatricians and pediatric hospitals have been caught up in the tidal wave of large awards created by the malpractice problem. In the past, pediatricians and pediatric hospitals were believed to be shielded to some degree from malpractice exposure. Children's hospitals were viewed as a community asset and favored charities. Pediatricians seemingly did a better job communicating and establishing rapport with families. Today, those factors are usually outweighed by other factors that create the potential for a large award (claim severity) in every case involving an injured or deceased child. Juries are no longer reluctant to award multimillions in damages to any claimant, regardless of age. Medical expenses associated with extended care for a severely injured child are a huge factor. Sympathy often overcomes the jury's ability to assess liability in cases involving children. This makes such cases extremely difficult to defend at trial, despite the recent moderation of malpractice severity trends. This in turn drives up settlement values in cases involving children. Pediatricians and many pediatric sub-specialists carry minimum limits of coverage, typically $1M/$3M, frequently leaving the community or pediatric hospital as a deep pocket in catastrophic injury cases. HealthTrek

2 Willis A study published in 2003 found that the rate of medical errors for hospitalized children ranged from 1.81 to 2.96 per 100 discharges. Children: Demographics In 2003, there were 73 million children ages 0-17 in the U.S., comprising twenty five percent of the population 1. Eighteen percent of all children lived in poverty 2. Of the 45 million uninsured, 8.4 million are children 3. Thirty two percent of children live in single parent homes 4. About eighteen percent of all hospital stays are for children and adolescents, with two thirds of all stays being for newborns and neonates (babies up to thirty days old), with the vast majority of these stays involving births 5. These demographic and socioeconomic factors have significant medical-legal implications for the healthcare delivery system. Parental compliance with treatment is often a problem fostered by family structure and economic resources. Communications from healthcare professionals to parents are more difficult when there are cultural, educational, and language barriers. Injured children may require very expensive care for short and long terms, thus encouraging litigation as a last resort for payment of mounting medical bills. Footnotes 1 "America's Children: Key National Indicators of Well-Being 2005", p.1 2 Ibid. 3 "Bright Futures", American Academy of, p.1. 4 "America's Children", p.1. 5 "Care of Children and Adolescents in U.S. Hospitals" Healthcare Cost and Utilization Project Fact Book, p.1. 6 Garros D, King WJ, Brady-Fryer B, et al. Strangulation with Intravenous Tubing; a Previously Undescribed Adverse Event in Children June 6; 111(3) pp.e Children: Unique Risks Children treated anywhere in the healthcare delivery system pose their own unique risks to patient safety. Younger children cannot communicate with their caregivers and the inability to express symptoms creates diagnostic and treatment challenges. Parents, guardians, and providers may not be constantly present at the hospitalized child's bedside. It is inherently more difficult to provide a safe environment of care for a pediatric population whether the setting is a physician's office or a hospital. Examination tables (falls), infant scales (falls), electric beds (crushing), taped IV sites (infiltrates), and intravenous tubing (strangulation 6 ) are just some of the examples of equipment/environment that can cause serious injury without modification for use with children. Medical equipment must be age-appropriate, especially anything used in conjunction with an emergency resuscitation such as defibrillators, airways, and emergency drugs. 7 Slonim AD, LaFleur BJ, Ahmed W, et al. Hospital- Reported Medical Errors in Children March;111(3) pp Miller MR, Elixhauser A, Zhan C. Patient Safety Events During Pediatric Hospitalizations June; 111 pp Fortescue EB, Kaushal R, Landrigan C, et al. Prioritizing Strategies for Preventing Medication Errors and Adverse Drug Events In Pediatric Inpatients April; 111 pp Kaushal R Bates D, Landrigan C, et al. Medication Errors and Adverse Drug Events in Pediatric Inpatients. JAMA 2001 April 25; 285 (16):pp American Academy of, Periodic Survey of Fellows #48, p.2, The administration of anesthesia and sedation in children presents unique challenges. There are detailed American Society of Anesthesia and American Academy of guidelines that promote pediatric patient safety in the many settings where adverse events can occur. Patient safety issues and medical errors involving children have not been researched as thoroughly as in other patient populations, but there are enough reports in the literature to identify recurring patterns of errors. A study published in 2003 found that the rate of medical errors for hospitalized children ranged from 1.81 to 2.96 per 100 discharges. Chronically ill children or those dependent on medical technology "had significantly higher rates of.medical errors". Children whose cases involved medical errors "had significantly higher death rates" and longer hospitalizations. Urban teaching hospitals had higher rates of medical errors 7. The Agency for Healthcare Research and Quality (AHRQ) studied and identified recurring patient safety events in children in The highest rate of incidence by far was associated with birth trauma, with almost two thirds of those cases involving skeletal injuries. Other recurring types of pediatric events included postoperative infection, infection attributed to a procedure, and transfusion reactions 8. 2 Willis Health Trek

3 Chronically ill children or those dependent on medical technology "had significantly higher rates of.medical errors". No review of recurring pediatric patient safety events that can result in serious injury and malpractice claims is complete without including medication errors. Children are more susceptible to medication errors for many reasons. Weight can fluctuate rapidly and significantly. Medications may only be available in adult concentrations. Dosages must often be calculated individually thereby increasing the chance for errors, some of them 10-fold. Children's bodies may not be able to buffer medication errors as well as adults' 9. A study published in 2001 on medication errors in pediatric patients found that there were 55 medication errors per 100 admissions, with some pediatric patients having three or more errors. Neonates in a neonatal intensive care unit (NICU) were more susceptible to medication errors as were adults cared for in a pediatric environment (e.g. those with congenital conditions). Most errors occurring in this study were caused by dosing mistakes followed by incorrect route of administration. Of particular note was the conclusion by the researchers that 93% of the events were potentially preventable by the use of computerized physician order entry systems (CPOE) 10. Pediatric Malpractice Claims: Data Sources There is no comprehensive national data base on the incidence of malpractice claims against pediatricians and pediatric facilities. There are physician malpractice claims information sources and databases on pediatrics with information that are instructive, especially since the hospital is the site of alleged malpractice in two-thirds of claims against pediatricians (as reported to the American Academy of ) 11. These include the Physician Insurers Association of America (PIAA), the American Academy of (AAP), and individual physician malpractice carriers' experience. Information on claims and risk factors for pediatric facilities is obtainable from discussions with malpractice carriers/reinsurers and in certain instances, from articles or texts. Malpractice Trends: Pediatricians According to the PIAA the five most prevalent conditions in claims closed against pediatricians solely in the year 2004 involved: newborn respiratory problems, meningitis, the brain damaged infant, children seen for routine health checks, and appendicitis 12. For claims closed in Graph , ' average indemnity exceeded that for all other specialties by 43% and was the second highest of all specialties (See Graph 1) 13. Claims involving births and those involving the disease meningitis produced the highest average payments at $1,000,000 and $856,750 in the year 2004 (See Graph 2) 14. was ranked ninth among 28 specialties followed by the PIAA from 1985 to 2004 regarding the number of claims presented, but ranks fourth in highest average indemnity paid (See Graph 3) 15. Comparative Malpractice Claims Closed in 2004 from PIAA Average % Claims Specialties Indemnity Paid to Closed *Other nonsurgical specialists $513, $468, Neurology $459, Neurosurgery $452, Radiation therapy $450, Anesthesiology $403, Obstetrics/Gynecology $402, Otorhinolaryngology $335, General Surgery $335, Gastroenterology $326, All $324, *Per PIAA, this specialty includes hospitalists, chiropractors, podiatrists, and physical and rehabilitative medicine. Willis Health Trek 3

4 Healthcare Practice Graph 2 Claims by 10 Most Prevalent Patient Conditions Claims Closed in 2004 Only Closed % Paid Average Patient Condition Claims to Closed Indemnity Respiratory problems in the newborn $250,000 Meningitis $856,750 Brain Damaged Infant $436,000 Routine infant or child health check $10,000 Appendicitis $73,333 Pyrexia $387,000 Congenital anomaly of circulatory system $250,000 Pneumonia $487,500 Congenital anomalies of heart $550,000 Birth $1,000,000 Totals: $431,190 The cumulative average indemnity for is 33% higher than the overall average for all specialties 16. In terms of recurring causes of claims against this specialty, the most common reason was diagnostic error, reported as the primary problem in more than one third of the claims in the cumulative study (See Graph 4) 17. Meningitis was the condition most often incorrectly diagnosed, and those claims led to the highest percentage of paid claims (51.6%) as well as the highest average payout ($429,270) (See Graph 5) 18. The most prevalent medical condition leading to claims against pediatricians was brain damage to an infant followed by meningitis, and 29.1% and 43.69% of those claims closed with an indemnity payment respectively (See Graph 6) 19. Graph 3 Comparative Malpractice Claims from PIAA Average % Claims Specialties Indemnity Paid to Closed Neurology $302, Neurosurgery $294, Obstetrics/Gynecology $261, $254, Radiation therapy $250, Cardiovascular - Nonsurgical $242, Pathology $228, Paraprofessional* $217, Cardiovascular & thoracic surgery $206, Anesthesiology $205, *Per PIAA, this specialty includes nurses aides and home health aids. Graph 4 Claims by 10 Most Prevalent Medical Misadventures PIAA Cumulative Analysis: January 1, December 31, 2004 Total % Paid Average Medical Misadventure Claims to Closed Indemnity Errors in diagnosis 2, $254,378 No medical misadventure 1, $252,521 Improper performance $198,143 Failure to supervise or monitor case $326,537 Medication errors $168,009 Failure/delay in referral or consultation $233,514 Not performed $199,575 Delay in performance $353,071 Failure to recognize a complication of treatment $202,772 Performed when not indicated or contraindicated $171,149 Totals: 6, $247,871 Footnotes continued 12 Risk Management Monograph, PIAA Data Sharing Project 2005, Exhibit AAP News Vol. 26 No. 7, July 2005, p Ibid. 15 Ibid. 16 Ibid. 17 RMM, PIAA 2005, v. 18 Ibid. Willis Health Trek 4

5 A special PIAA study on Pediatric claims in 2003 examined the locations for recurring claims. This study found that the leading locations for Pediatric claims were the outpatient setting, the operating room, and the patient's room (See Graph 7) 20. Medical Protective is the largest insurers of physicians by policy-holder count and has historically insured many pediatricians because it has offered occurrence coverage. In the eight years from , their average indemnity payment on behalf of pediatricians rose from $140,988 to $245,850. In five of those years the percentage of claims paid in excess of one million dollars was higher in than for all other specialties 21. A membership survey conducted by the American Academy of in 2001 characterized the most frequent causes of claims against pediatricians in this way: failure to diagnose meningitis or other infectious disease; claims involving treatment of newborns; and medication errors. The AAP mentioned the increase in medication errors as a concern in the 2001 study. As to the site of claims, AAP indicated about twothirds of pediatricians said the hospital was the site of the claim 22. The survey indicated 56% of pediatricians who had a claim said the hospital was also named 23. In terms of claim frequency, three out of ten pediatricians reported being sued for malpractice in the AAP Survey, a percentage consistent with the survey since Graph 6 Claims by 10 Most Prevalent Patient Conditions Graph 5 Claims by Diagnostic Error PIAA Cumulative Analysis: January 1, December 31, 2004 Total % Paid Average Error in Diagnosis Claims to Closed Indemnity Condition Meningitis $429,270 Appendicitis $126,211 Specified nonteratogenic anomalies $197,707 Pneumonia $335,950 Brain Damaged Infant $335,815 PIAA Cumulative Analysis: January 1, December 31, 2004 Total % Paid Average Patient Condition Claims to Closed Indemnity Brain Damaged Infant $438,908 Meningitis $432,454 Routine infant or child health check $104,835 Respiratory problems in the newborn $272,676 Appendicitis $110,074 Pneumonia $209,242 Specified nonteratogenic anomalies $183,846 Premature infant $308,427 Congenital anomaly of genital organs $169,417 Asthma $200,475 Totals: $314,543 Totals: 1, $319,991 Graph 7 Top Five Locations For Pediatric Claims : Footnotes continued 19 Ibid. 20 PIAA Research Notes, Pediatric Claims, Fall 2003, p Medical Protective, unpublished claims data, Location Closed Claims Outpatient 6,422 Operating Room 5,359 Patient's Room 2,257 Emergency Dept 1,927 L&D 1,896 Source: PIAA, Willis Health Trek

6 Willis Healthcare Practice 26 Century Boulevard Nashville TN Web Site: Phone: Fax: Questions, suggestions, or requests for additional copies are welcome and should be directed to the Willis Healthcare Practice P.O. Box Nashville, TN Malpractice Trends: Pediatric Hospitals There are no published studies on malpractice claims involving pediatric hospitals. One Bermuda-based reinsurer, Endurance Specialty, has created an unpublished database of hospital professional liability claims, including those against stand-alone pediatric hospitals. Reinsurers typically require a significant self insured retention and thus are especially interested in large malpractice claim payouts that have the potential of affecting their layers of coverage. The Endurance database includes more than twenty pediatric hospitals with their claims experience for the last ten years. Their database includes nineteen claims at or in excess of five million dollars paid on behalf of pediatric hospitals in this time frame, with the largest payout topping out at $16.5 million. This is consistent with the national malpractice claim trend of rising severity over the last ten years. Note the consistency with the rise in physician claim severity indicated in the PIAA studies and Medical Protective's results. Like claims against acute care hospitals, venue is a significant factor for pediatric hospitals. Several hospitals in the Endurance database had more than one large claim payout. The recurring causes of these large claims involved surgical errors, failure to diagnose (none in the Emergency Department), and medication errors. There were more claims involving medication errors in the recent past. No claims in the Endurance database arose from a neonatal intensive care unit. Conclusion Malpractice reforms enacted recently in many states have sought to cap non-economic damages and limit the time frames for patients to file suits, including minors. These reforms may help reduce future large payouts and the numbers of suits filed in cases involving children. Even with the passage of non-economic damage caps in many states, plaintiff's lawyers can set forth huge dollar amounts for the economic costs of ongoing care for an injured child. Therefore, risk management and patient safety initiatives in physician practice and facility settings should be heavily focused on prevention when the patient population includes pediatric patients. Footnotes continued 22 AAP Survey, p Ibid, p Ibid, p Willis Health Trek Designed by the Willis, Global Design Centre