IHS-Tribal Malpractice Tort Claim Experience, 1987–2004
Risk Management and Medical Liability
A Manual for Indian Health Service and Tribal Health Care Professionals
Section Nine: IHS-Tribal Malpractice Tort Claim Experience, 1987–2004
The Office of Clinical and Preventive Services (formerly the Office of Health Programs), Indian Health Service (IHS) Headquarters, has twice compiled statistics from reviews of its case file data base of alleged malpractice incidents. The first involved cases stemming from claims that were filed between fiscal years 1987 to 1995, inclusive. The second involved cases filed between fiscal years 1996 through 2002. The results of both of those reviews have been combined for the purposes of this Manual. Cases include those alleging medical malpractice at IHS and Tribal sites.1
Number of Cases per Year: Although it is common for individuals to file multiple tort claims with respect to one incident of alleged malpractice, the cases per year noted here reflect only the number or incidents, not the number of claims filed. This is an important distinction, because it is the incident itself that deserves the scrutiny of a risk management program; the number of claims filed by various parties affected by an incident is a poor indicator of the merits of the case in question.
Figure 1, right, shows the number of cases processed by fiscal year (FY), 1987-2004.2 The case load generally increased over the nine year period 1986-1995, then appeared to level off during subsequent years. The exception was FY2002, when the IHS Risk Management Program processed 118 cases. One reason for the increase that year was a series of cases from the same law firm filed against a number of service units in the Southwest alleging negligent prescribing of the drug troglitazone, a medication that received considerable notoriety in the press nationwide.3 Since FY2002, the number of cases has again stabilized in the 88-96 range.
Allegations of Negligence: The types of allegations found in this series of cases were categorized as follows (see Figure 2 below):
- Failure to diagnose or delay in diagnosis - 35%: It is not surprising that this category is the most common. As noted above, the majority of the care provided by IHS and Tribal facilities is outpatient, not high risk inpatient procedures. Clinics and emergency rooms are usually busy and hectic places to work. Patients often present with vague symptoms that are not always readily diagnosable on the first visit. Some of the more common missed or delayed diagnoses include appendicitis, tubal pregnancy, occult cancer, sepsis, and myocardial infarction. It is important to remember that patients with uncertain diagnoses should be given specific follow-up visits within a reasonable period of time. This is particularly true of patients with abnormal physical findings or laboratory studies. Telling these patients to “return PRN” may increase the risk of future tort claims.
- Negligent medical management - 18%: It is often difficult to separate an allegation of negligent management from one of failure to diagnose, so there is considerable overlap between these two categories. Included here are cases where the allegation was predominately one of medical mismanagement (not including surgical or perinatal cases). Here the diagnosis of a myocardial infarction or infection or cancer might have been made, but the choice of therapy was alleged to be wrong. Sometimes these cases involve competency issues, sometimes judgment calls. For the latter, courts will often turn to expert witness testimony or published standards of care.
Note: Added together, alleged misdiagnosis and medical mismanagement cases comprise 54% of all malpractice cases filed against the IHS and Tribal sites.
- Negligent performance involving surgery/anesthesia - 19%: Allegations involving surgical procedures usually relate to improper performance. A number of claims involve retained sponges, bile duct injuries during laparoscopic cholecystectomy, or post operative adverse events. Complications will arise from surgery, even in the best of hands, so it is extremely important that detailed informed consent be obtained prior to the operation. When a known or predicable surgical complication occurs, it does not automatically imply negligence, especially if the surgeon’s complication rate is low and the patient has been adequately informed of the risks.
- Negligent perinatal care - 11%: Claims involving perinatal care arise from adverse outcomes affecting the mother and/or the fetus or newborn infant. Sometimes the issue involves the prenatal care that was provided, but most often these claims allege mismanagement of labor and delivery. Delay in delivery and failure to identify fetal distress are common allegations. Detailed fetal monitor strips and labor progress notes are immensely helpful in reviewing these cases.
- Negligent treatment with drugs - 6%: This category involves claims where the allegation is limited to either a prescribing or dispensing error. Prescribing the wrong dose or dispensing the wrong medication is rarely defensible when the patient suffers an adverse outcome. Clear, concise written prescriptions and double checking names and doses help reduce the incidence of such errors. Medication errors have been brought under increased scrutiny over the last several years with respect to patient safety in the hospital setting. Most facilities are now carefully tracking their medication errors as part of a facility wide patient safety program.
- Negligent Dental Care - 4%: Alleged adverse outcomes from dental care account for only 2-3 cases per year. These may include the wrong tooth being extracted, persistent pain after a procedure, damage to the oral cavity, or cosmetic issues. When dental cases are settled, payments are usually quite small.
- Other/unknown - 7%: This category includes claims with a variety of allegations that do not fit into any one of the above categories. On occasion, the allegation is so vague, it is nearly impossible to appreciate the basis for the claimant’s argument.
Types of Injury: In general, patients are more likely to file a claim when they suffer a significant injury. One reason for this is that the compensation awarded will potentially be much larger for permanent injuries or wrongful deaths, and attorneys may be more willing to pursue settlement of a claim if the opportunity for a sizeable contingency fee exists. Nonetheless, a claimant does not need to prove permanent physical injury or death; rather he or she may also sue for temporary (even trivial) injuries, mental anguish, or pain and suffering.
Thus, permanent physical injuries are the most common alleged injuries in IHS and Tribal claims, accounting for 39% of all cases. These injuries can include loss of function, scars, brain damage, chronic pain, and so on. Wrongful deaths are the next most common injuries, and they account for 30% of all IHS cases. This includes both fetal and newborn deaths as well as older children and adults (adult deaths being by far the most common type of wrongful death allegations). Temporary physical injuries account for 23% of all cases, and non-physical injuries are noted in 2.3% of cases. About 6% of the time, the alleged injury is not readily categorized or the claim or record does not give sufficient information to determine what (if any) injury actually occurred. Figure 3 ((right) illustrates the relative frequency of alleged injuries for this series of cases.
1 Comparing IHS/Tribal medical malpractice claims experience to national data has proven difficult due to vastly different characteristics of these federal healthcare delivery programs and privately insured institutions or individuals. Therefore, no such comparisons have been included.
2 Cases for FY 2003 and 2004 have been included only for the analysis of the number of claims processed annually.
3 It should be noted that all these troglitazone related-related cases were found to have no merit.