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Medical Malpractice: Why Things Go Wrong

Learn more about top contributors to medical malpractice lawsuits

A judge's gavel and doctor's stethoscope

The specter of malpractice claims weighs heavily on many clinicians. Gretchen Ruoff, MPH, and Adam Schaffer, MD, from CRICO Strategies, a Harvard University-based risk management organization, explore the top contributors to malpractice lawsuits and strategies for avoiding litigation.

Main Causes of Malpractice Lawsuits

Clinical judgment. Poor clinical judgment is a factor in approximately 60% of malpractice lawsuits, Ruoff says. Inadequate patient assessment is the most common error in this category. In the ambulatory setting, errors typically involve inadequate history-taking or failure to perform an adequate physical examination. In the inpatient setting, inadequate patient monitoring, failure to rescue, or premature discharge are the most common errors.

Practicing “defensive medicine”—ordering diagnostic tests solely to protect against malpractice claims—is a poor substitute for exercising clinical judgment, Schaffer says. “On the other hand,” he adds, “if you are a little bit more comprehensive in thinking about things diagnostically, then occasionally that may have benefits to the patient.”

Communication. Gaps in care coordination, miscommunication around patient expectations, and inadequate patient engagement can provoke malpractice lawsuits. Insufficient documentation in EHRs is also an important factor. “When we see any indication that there has been insufficient documentation that affects delivery of care, a case is 76% more likely to close with a payment,” Ruoff explains.

Technical performance. This category includes inadequate technical skill or a lack of experience in performing surgical and nonsurgical procedures.

Tips for Avoiding Malpractice Lawsuits

Document the diagnostic process. “Documenting the differential diagnoses and how you narrowed it down to a leading diagnosis is useful,” Schaffer explains, because it demonstrates that the clinician is making a sincere effort to exercise clinical judgment.

Communicate effectively. “Even if clinicians get themselves completely down the correct diagnostic path, if there’s a failure to communicate that to the patient or family member, that can still lead to a hurtful outcome. Documenting the way the information is communicated and the intent to communicate is critically important,” Ruoff emphasizes.

Stay engaged. A common question from clinicians is how to respond when an adverse event has occurred and the patient is upset about the care provided, Schaffer says. “Maintaining a strong physician-patient relationship can go a long way to preventing an adverse event from becoming a malpractice claim. Frequently, clinicians’ response is that they want to withdraw from care. We know the best reaction is to do just the opposite. Don’t make the patient feel like you are deserting or abandoning them.”


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