Analysis of closed malpractice medical claims against Taiwanese EDs: 2003 to 2012

a b s t r a c t

Objectives: The objective of the study is to examine the epidemiologic data of closed malpractice medical claims against emergency departments (EDs) in Taiwanese civil courts and to identify high-risk diseases. Methods: We conducted a retrospective study and reviewed the verdicts from the national database of the Taiwan judicial system that pertained to EDs. Between 2003 and 2012, a total of 63 closed medical claims were included.

Results: Seven cases (11.1%) resulted in an indemnity payment, 55.6% of the cases were closed in the district court, but appeals were made to the Supreme Court in 12 cases (19.1%). The mean incident-to-litigation closure time was

57.7 +- 26.8 months. Of the cases with indemnity paid, 5 cases (71.4%) were deceased, and 2 cases (28.6%) were gravely injured. All cases with indemnity paid were determined to be negligent by a medical appraisal. The gravely injured patients had more indemnity paid than deceased patients ($299800 +- 37000 vs $68700 +- 29300). The most common medical conditions involved were infectious diseases (27.0%), central nervous system bleeding (15.9%), and trauma cases (12.7%). It was also found that 71.4% of the allegations forming the basis of the lawsuit were diagnosis related.

Conclusions: Emergency physicians (EPs) in Taiwan have similar medico-legal risk as American EPs, with an annual risk of being sued of 0.63%. Almost 90% of EPs win their cases but spend 58 months in litigation, and the mean indemnity payment was $134738. Cases with indemnity paid were mostly categorized as having diagnosis errors, with the leading cause of error as failure to order an appropriate diagnostic test.

Introduction

Increasing numbers of medical malpractice claims have been observed in both Western countries [1] and Taiwan [2]. The emergency department (ED) is a unique setting, with multiple complex factors that contribute to potential errors [3,4]. Emergency care providers often work under adverse conditions, including disrupted sleep cycles and multiple distractions, and must make rapid decisions on the treatment of acutely ill patients based on incomplete information [3,4]. Because of the limited time for patient interactions and the noncontinuous doctor-patient relationship, emergency physicians (EPs) are at a particularly high risk for malpractice claims [2,5-7].

If an EP is served with a malpractice claim, the average time between the alleged incident and litigation closure is 45 months. In addition, the malpractice insurer will incur more than $14000 in

? Prior presentations: None.

?? Funding sources/disclosures: This study was supported in part by Research Grants from the Kaohsiung Chang Gung Memorial Hospital (CMRP-G8B0941).

* Corresponding author. 21F-3, No. 123-11, Dapi Rd, Niaosong Township, Kaohsiung County 833, Taiwan (ROC). Tel.: +886 0988 593 592; fax: +886 07 7317123 8415.

E-mail address: [email protected] (K.-H. Wu).

¹ Cofirst author (equal contribution): Kuan-Han Wu and Chien-Hung Wu.

expenses, regardless of the outcome [7]. The cost of a Medical malpractice claim ranges from US $313205 to $521560 and is dependent on whether the claim involves errors [8]. In Taiwan, EPs pay the highest median indemnity payments in civil courts among all medical specialties [2]. Because of the direct costs of lawsuits and indemnity payments and the indirect costs of litigation, including time, stress, additional work, and reputational damage, EPs are prone to emotional exhaustion and career dissatisfaction. As a result, they may increasingly engage in defensive medicine [9], which further poses serious burdens to the cost and quality of medical care [10]. Of the high-risk specialties, 93% of physicians practice defensive medicine [5]. In addition, it has been shown that not only litigation but also the perception of legal risk may be sufficient to stimulate the ordering of unnecessary tests for patients with Low-risk chest pain

[11] and abdominal pain [12].

In addition to understanding the demographic data, specialty risk, high-risk diagnosis, and cost of medical litigation, it is also important to identify clinical behavior and Medical error that leads to lawsuits through the analysis of closed medical claims [13]. This knowledge could provide useful information for the maintenance of good clinical practice as well as risk management to avoid preventable medico- legal risk [14]. Both anesthesia and obstetric physician societies have decreased the incidence and costs related to medical malpractice as well as improved Physician satisfaction, after the establishment of

http://dx.doi.org/10.1016/j.ajem.2014.05.033

Safety measures developed from the knowledge gleaned from closed medical malpractice claims [15].

Studies examining EP behavior that resulted in malpractice claims were conducted more than 10 years ago [16,17]; therefore, the results may not be extrapolated to the present as a result of changing medical knowledge. Recent studies of closed claims [12,13] have only examined the breakdown of missed or delayed diagnoses and have not focused on other aspects of the medical process. Furthermore, previous studies were based on regional hospital [16,18] or professional liability insurer [17,19] databases and were conducted in Western countries. Using a national judicial database, spanning the period 2003 to 2012 in Taiwan, this study aimed to examine a non- Western country’s experience of ED-related closed medical claims and identify high-risk diseases and Medical errors. With this information, ED practitioners may gain knowledge and improve risk assessment when confronted with a lawsuit as well as develop strategies to decrease preventable litigation.

Methods

The judicial system in Taiwan

The court system in Taiwan is based on the continental German system and differs from the common law system described previously [6,7,14,16,20]. In Taiwan, civil litigation is based on the adversary system, which is a legal system where both the plaintiff and defendant represent their parties’ opinions before a judge, who attempts to make a fair judgment. No jury is present. The judicial system of Taiwan consists of the supreme court, high courts, and district courts, and a system of “3-level and 3-instance” is used.

A medical malpractice claim is defined as a lawsuit against a health care provider or facility that was filed by a patient or patient’s family for an alleged injury arising from medical care. All medical litigation cases are heard by the district courts first. If the litigants disagree with the adjudication, appeals are made to the high court. Judges in the high court may affirm or reverse the decision of the district court. If the litigants refuse to accept the verdicts of the high court, the cases are appealed to the supreme court. The supreme court judges may affirm the verdict of the high court, reject the verdict of the high court and make a new verdict, or may return the case to the high court. If the supreme court affirms the verdict or the plaintiff does not appeal to a higher court, the cases are considered to be closed.

The data and medical records related to the cases are sent for medical appraisal if judges require further clarification of medical practice standards. The medical appraisal results were used as reference to help judges make final verdicts. Testimony may be presented by a medical organization, by a specialty medical association, or by the official Malpractice Arbitration Committee, under the agreement of both the plaintiff and defendant. The judgments of the medical appraisal are based on the comparison of the disputed act to the accepted medical standard of care at the time of the incident. The results of the medical appraisal were categorized into appropriate, where the disputed act is in accordance with accepted standard of care; negligent, where the disputed act does not conform to the standard of care; or controversial, where the disputed act has partially deviated from the standard of care but not to the degree of negligence. The examples for a controversial medical appraisal include the failure to timely prescribe antibiotics for a septic patient, Disease progression due to failure to follow blood culture data promptly and change antibiotics accordingly, or inadequate conscious monitoring in a patient with delayed traumatic intracranial hemor- rhage. Overall, the diagnosis or treatment process of cases with an equivocal appraisal result was debatable but was not obviously negligent and was therefore given a controversial medical appraisal. Negligence used in this article refers to act or omission by a health care provider in which the treatment provided falls below the

accepted standard of practice defined by a medical appraisal result or verdict result and causes injury or death to the patient.

Study approval

We conducted a retrospective study and reviewed the Taiwanese civil court verdicts that pertained to EDs from 2003 to 2012. Because all records consisted of public deidentified information, no institu- tional review board approval was required. This was confirmed and approved by our hospital’s institutional review board.

Judicial database and identification of cases of interest

The database was obtained from the “The Judicial Yuan of The Republic of China Law and Regulation Retrieving System” deidentified database. The database contains all verdicts of closed litigation since 2001 and includes information from the district court, high court, and supreme court cases. This free, online, public access database is available to the general public without permission and contains no patient-identifying information.

In the Taiwan civil law system, the compensation basis for the plaintiff in a malpractice claim is called “damages.” In this study, we focused on the ED doctor-related litigation. Thus, to identify verdicts related to medical litigation cases, the verdicts from the district courts from January 2003 to December 2012 were first searched using the keywords “damages” and “doctor.” In Chinese, the word “doctor” was the most commonly used term and that term included physicians, residents, and interns. Second, the collected verdicts were examined to identify the medical litigation cases. Third, the high court and supreme court databases were examined for the medical claims that were identified in the district court database to follow the appeal process. Trials that closed between January 2003 and April 2013 were selected as closed medical claims. The cases examined in this study consisted of closed medical claims against ED doctors, including physicians, residents, and interns. The nursing staff, ED administra- tors, or other nondoctor medical practitioners were not included in this study. In some cases, specialty consultants, physicians, or other departments who cared for the patient either before or after the ED were also involved in the same trial; however, only the portion of the litigation pertaining to the ED doctor was examined. Cases were excluded from examination if they were dismissed by legal right elimination, such as provisions concerning limitation of action.

Outcome measures

The verdict data contained a brief description of the alleged injury, a description of the major dispute, and detailed opinions of the dispute by both the defendant and plaintiff. The results and summarized testimony of the medical appraisal were also included. Data available in the court verdicts included the disease and outcome of alleged injury, the court-rendered final judgments, the length of time to reach adjudication, the results of the medical appraisal, the indemnity claimed and paid (if any), the time from date of incident to litigation closure, and the time interval between each trial. Indemnity claimed included the interment fee, Medical expenses, salary, and economic support damages and any noneconomic damages. Official administrative expenses for each trial were approximately 1% of the indemnity claimed by the plaintiff.

The litigation result was either indemnity payment or dismissal of the case without payment. The outcome of injury was categorized into 4 grades: death; grave injury, such as serious injury in which the patient survives but is in a vegetative state; permanent injury involving limb loss or organ dysfunction; or others such as temporary injury or emotional injury. The level of hospital, as defined by the Taiwan accreditation system, was also documented: medical center, regional hospital, or district hospital. Information that was not

available in the verdicts included the age, sex, medical history, and medical litigation history of the plaintiff and defendant. Although all of the involved physicians worked in EDs, the board certification status of the physicians was not available.

The verdicts of the cases examined in this study were scrutinized independently by 2 physician reviewers to determine the type of primary error. Primary error is defined as the single most significant act occurring during the care process that led to the alleged injury. If there were inconsistencies between the 2 physician reviewers, the final decision was made after a consensus meeting with a third reviewer. The type of error was categorized into 3 groups:

(1) Diagnosis errors were those in which the initial ED diagnosis was not the same as the disease that caused the alleged injury. Diagnosis errors included failure to order appropriate tests, failure to follow up clinical conditions and laboratory results, and failure to recognize complications of the treatment. Diagnosis errors cause a delay in the identification of the underlying problem and appropriate treatment. (2) Performance errors were those in which the ED diagnosis was the same disease that caused injury but was treated in an inappropriate manner. Performance errors included improper procedures such as not following accepted standard of care, Improper treatment such as failure to perform an indicated treatment or procedure, inappropriate medication dosage, failure to order con- sultation, and lack of appropriate supervision. (3) Other errors were those that could not be categorized as either diagnosis or perfor- mance errors and included the occurrence of new medical conditions that were not expected at the time of the initial evaluation, equipment failure, and Allergic reactions.

Data analysis

Descriptive statistics were used to evaluate the data. Data were presented as mean +- SD and percentage (%). The indemnity amount was converted from New Taiwan dollars into US dollars using the exchange rate of 30:1. Statistical analysis was performed using SPSS statistical software for Windows version 13 (SPSS, Inc, Chicago, IL).

Results

A total of 715 closed medical claims were extracted from the database from between January 2003 and December 2012. After the examination of the identified cases, 66 closed cases pertaining to ED doctors were identified. Three cases were excluded from further analysis as they were dismissed by legal right elimination. The

Table 1

Demographic data and characteristics of medical litigation cases in Taiwan

		All claims,	Indemnity	No indemnity
		n = 63	paid, n = 7	paid, n = 56
Patient type	Nontrauma	41 (65.1)	3 (42.9)	38 (67.9)
	Trauma	15 (23.8)	4 (57.1)	11 (19.6)
	Pediatric	7 (11.1)	0	7 (12.5)
Level of hospital^a	Center	19 (28.8)	3 (42.9)	16 (27.1)
	Regional	40 (60.6)	4 (57.1)	36 (61.0)
	District	7 (10.6)	0	7 (11.9)
Court that made the final	Supreme	12 (19.1)	3 (42.9)	9 (16.1)

remaining 63 closed cases composed the study group. In total, 95 ED doctors (including 75 physicians, 18 residents, and 2 interns) were involved in study cases. Residents were codefendants in 13 (20.6%) of the cases. According to government statistical reports, the average number of physicians working in Taiwanese EDs was 1189 people per year over the 10-year period of examination. Thus, the annual risk of Malpractice litigation was 0.63%. A total of 23 cases (36.5%) involved not only ED doctors but also other specialists who were consultants or previous or subsequent care providers. Of the closed cases identified, 10 cases were judged liable by the court, although 3 were related to other specialties and were not examined further. Seven cases (11.1%) resulted in an indemnity payment, with a mean payment of $134738. Most verdicts (56 [88.9%]) were settled in favor of the clinician.

The basic demographic data and characteristics, subdivided according to payment of indemnity, are shown in Table 1. Most (65.1%) of the study group were nontrauma cases, especially in the cases that were dismissed without indemnity payments (67.9%). In contrast, indemnity payments were slightly more likely in trauma cases (57.1%) than in nontrauma cases (42.9%). When the level of hospital was considered, most cases came from Regional hospitals (60.6%), with fewer coming from medical centers (28.8%) and even fewer from district hospitals (10.6%). More than half of the cases were closed in the district court (55.6%). Appeals were made to the high court (25.4%) and the supreme court (19.1%), although all of the rulings made by the judges remained the same after appeal. In the 7 cases that had indemnity paid, 4 cases were closed by the district court, and the remaining 3 cases were closed by the supreme court. The mean length of time between the incident and litigation closure was 57.7 +- 26.8 months. The cases in which indemnity was paid took longer to close (70.6 +- 26.4 months). The time from incident to judgment was longest in the district court (48.5 +- 22.4 months). When cases were appealed, it took the high court and supreme court additional time to make judgments (18.6 +- 11.7 and 5.8 +- 2.6 months, respectively).

Almost all of the cases (93.7%) were sent for medical appraisal at least once during the trial. Most cases (71.2%) were deemed as appropriate medical management by the medical appraisal. Eight cases (13.6%) were considered controversial because part of the clinical treatment was equivocally inappropriate but not to the degree of negligence or error. In all cases determined to be appropriate or controversial, the doctors would be found not liable and no indemnity payments made. Nine cases were deemed to be negligent by medical appraisal, and 7 (77.8%) of these cases were found liable for indemnity. Of the 9 cases of negligence, 7 cases were categorized to be diagnosis errors, and 2 cases were performance errors.

Patient outcomes, subdivided into indemnity claimed and paid, are shown in Table 2. Of the claims examined in this study, most were the result of alleged serious and permanent injuries, with 79.8% of plaintiffs having died (60.3%) or experiencing grave injury (19.1%). The 12 cases of permanent injury (19.1%) and 1 case (1.6%) of depressive emotional stress had no indemnity paid. Of the cases in which indemnity was paid, the patients in 5 cases (71.4%) were deceased, and those in 2 cases (28.6%) were gravely injured. Patients with grave outcomes claimed the largest amount of indemnity ($447400 +- 398800), whereas in cases in which the plaintiff expired, the average indemnity claimed was $213100 +- 167200. Similarly,

deceased patients had less indemnity paid than the gravely injured

judgment

High 16 (25.4) 0 16 (28.6)

District 35 (55.6) 4 (57.1) 31 (55.4)

patients ($68700 +- 29300 and $299800 +- 37000, respectively).

Appraisal results^b Appropriate 42 (71.2) 0 42 (80.8)

Controversial 8 (13.6) 0 8 (15.4)

Negligence 9 (15.3) 7 (100) 2 (3.9)

Overall, the indemnity paid was 48.0% of the indemnity claimed in the 7 cases in which indemnity was paid.

The most common conditions involved in the alleged malpractice

Incident-to-litigation closure (mo)

57.7 +- 26.8 70.6 +- 26.4 56.2 +- 26.6

claims were infectious diseases (27.0%), including meningitis, sepsis, and myocarditis. Along with central nervous system (CNS) bleeding

Data presented in parentheses represent a percentage of cases (%) or as mean +- SD.

^a Two patients sued 1 center hospital and 1 regional hospital; 1 patient sued 2 regional hospitals.

^b Four cases without indemnity paid were not sent for medical appraisal.

(15.9%) and trauma cases (12.7%), these 3 conditions comprised 55.6% of all claims. Shown in Table 3 is the categorization of the disputes regarding disease by the type of error. Most of the claims involved

Table 2

Indemnity claimed and paid, stratified by patient outcome

Indemnity claimed, n = 63 Indemnity paid, n = 7

Patient outcome	Death, n = 38	Grave, n = 12	Permanent, n = 12	Other, n = 1	Death, n = 5	Grave, n = 2
Total amount	213.1 +- 167.2	447.4 +- 398.8	149.6 +- 154.3	168.4	68.7 +- 29.3	299.8 +- 37.0
Interment fee	10.5 +- 8.4 (81.6%)	-	-	-	9.84 +- 9.43 (80%)	-
Medical expenses	6.8 +- 9.9 (39.5%)	304.8 +- 285.4 (66.7%)	48.98 +- 52.84 (50%)	-	1.5 +- 2.0 (40%)	186.4 +- 66.7 (100%)
Salary loss	19.22 (2.6%)	239.2 +- 185.2 (41.7%)	155.2 +- 244.8 (41.7%)	101.7 (100%)	-	12.0 (50%)
Economic support damages	73.3 +- 77.4 (60.5%)	-	10.0 (8.3%)	-	11.8 +- 6.6 (40%)	-
Noneconomic damages	145.2 +- 136.6 (92.1%)	131.5 +- 83.5 (75%)	47.3 +- 37.7 (75%)	66.7 (100%)	55.5 +- 26.3 (100%)	53.3 +- 18.9 (100%)

Data are represented as median dollars (1 unit = 1000 US dollars) +- SD. Data presented as a number within the parenthesis represent the percentage of plaintiffs that claimed this type of indemnity in the mean amount presented. For example, 39.5% of plaintiffs on behalf of deceased patients claimed medical expenses, the mean amount of said expenses totaling $6800 +- $9900.

diagnosis errors (52.4%), followed by performance errors (38.1%), and other errors (9.5%). The medical errors in the cases with indemnity paid are summarized in Table 4. Most of the medical errors were diagnosis related (71.4%), although there was performance error in 2 cases (28.6%). In all of the cases in which indemnity was paid, negligence was found by the medical appraisal. In the patient group in which indemnity was not paid, 7 cases were deemed negligent by the court but were judged in favor of the clinician as no causation between the medical error and the patient’s injury was found. In these cases, the result of the medical appraisal was negligence in 2 cases, controversial in 3 cases, and appropriate in 2 cases. The patient outcome in cases with identified negligent by court but no indemnity payments is summarized in Table 5.

Discussion

In the United States, EPs are at a high risk for being sued. In Taiwan, EPs are at a similar high risk for being involved in medical litigation. In the United States, 7.4% of physicians across specialties have a malpractice claim annually; the malpractice claim rate for EPs specifically is similar [21]. In a large study of 11529 ED-originated claims, the malpractice claims were resolved by verdicts in only 7% of claims [6], and the estimated annual malpractice litigation risk for EPs

Table 3

DisputED diseases in medical claims categorized by type of error

Type of error No. of cases

(n = 63)

Diagnosis error 33 (52.4%)

CNS bleeding 8

was 0.52%. In Taiwan, over a 10-year period, we found that the annual risk of being sued for EPs was 0.63%. Of the ED-related claims that were adjudicated in Taiwan’s civil courts, 88.9% were settled in favor of the physicians, which is similar to what has been observed in the United States [6]. In Taiwan, the average indemnity paid for cases that ruled in favor of the plaintiff was $134738, which is more than the average annual income of EPs working in Taiwanese hospitals. In contrast, the average indemnity paid by EPs in the United States was

$175545 for all 3216 claims regardless of outcome and was $393350 for the 119 cases closed after a verdict in favor of the plaintiff [6]. It is difficult to directly compare indemnity payments between different countries as there are additional confounding factors, including baseline Medical costs, salary system, and economic status of the country.

Of the medical claims identified in this study, almost 90% of the claims were dismissed without indemnity paid. When indemnity was paid, the amount paid was only 48.0% of the indemnity claimed. Although the likelihood that a claim will not result in a payment to a plaintiff is high, the risk of being sued itself is a significant fear among physicians [21]. The threat of malpractice lawsuits easily leads physicians to practice defensive medicine [5], which, in turn, raises the cost of health care. In the United States, the annual defensive Medical costs are estimated to be $45.59 billion, which accounts for 81.94% of all national medical liability system costs. Indemnity payments and legal costs account for only 17.70% of national medical liability system costs [22]. Despite the lack of evidence from literature, it is reasonable to infer that the estimated defensive medical costs

Table 4

Patient outcome and medical errors in cases with indemnity paid

Meningitis 5

Ischemic stroke 4

Trauma (testis rupture, fracture, liver rupture, pneumoperitoneum) 4

Case no. Disease Patient outcome

Medical error

Infectious diseases 4

Aortic vascular lesion 3

Drug or procedure complications (CNS bleeding, hemothorax) 2

Myocarditis 1

Testis torsion 1

Hepatoma 1

Performance error 24 (38.1%)

Infectious diseases 7

Trauma (cervical spine fracture, multiple trauma, blunt eye injury) 4

CNS bleeding Death Misdiagnosis of CNS bleeding after heparin

usage in a brainstem stroke patient with progressive deteriorating consciousness

CNS bleeding Death Delayed diagnosis of traumatic epidural

hemorrhage in a patient with scalp laceration and persistent headache

CNS bleeding Grave Delayed diagnosis of traumatic epidural

hemorrhage in an alcohol Intoxicated patient without full consciousness

Respiratory failure 3

Pancreatitis 3

Ischemic stroke 2

CNS bleeding 2

hemolytic anemia 1

Cardiogenic shock 1

Seizure 1

Out-of-hospital cardiac arrest 1

Other errors 6 (9.5%)

New onset disease not related to initial ED visit 4

Fall related to inadequate protection 1

Drug-induced anaphylactic shock 1

Traumatic small bowel rupture
Procedure complications

Hemolytic anemia

Respiratory failure

Death Misdiagnosis of pneumoperitoneum by computed tomography in a patient with rib fracture and hemothorax

Death Failure to recognize and treat Delayed hemothorax that occurred 1 d after chest tube insertion in a patient with persistent chest pain

Death Failure to order O-negative blood in an acute anemic patient with uncertain blood type; failure to supervise management of intern

Grave A 75-min delay for specialist consultation in a difficult to intubate patient

Table 5

Patient outcome in cases with identified medical errors but no indemnity payment

Case no. Disease Patient outcome Medical error

Sepsis Death Delayed administration of antibiotics in rapidly deteriorating septic shock patient
Sepsis Death CNS bleeding, induced by fall related to inadequate protection; died of sepsis 2 mo postadmission

CNS bleeding Death Delayed diagnosis of CNS bleeding in patient with traumatic right subdural hemorrhage postoperation

Sepsis Permanent injury- retarded growth

Inappropriate monitoring of intravenous puncture site resulting in secondary infection

Traumatic optic neuropathy

Permanent injury- Decreased vision

Delayed consultation with ophthalmologist

Testis torsion Permanent injury-

orchiectomy

Delayed diagnostic examination and consultation for testis torsion due to misdiagnosis in cases with atypical presentation (testis pain for 3 d)

Ischemia stroke Permanent injury-aphasia Delayed consultation with neurologist in patient presenting with aphasia

would be high in Taiwan, as the legal risk to EPs is similar to the legal risk in the United States.

The fear of malpractice litigation may arise from indirect costs of litigation, including time, emotional stress, added work, interrupted schedule, and reputational damage. Although physicians generally win their lawsuits, the average time for an EP to receive a verdict is long (57.7 +- 26.7 months). In contrast, the median length of time from incident to litigation closure in the United States is 45 months [7]. This lengthy time from incident to litigation closure poses implications for both physicians and plaintiffs through emotional stress and direct and indirect costs. On average, it took 48.5 +- 22.4 months for 55.6% of cases to be closed by the district court. Of the cases that were appealed, it took an additional 18 to 24 months for the cases to be closed. In none of the examined cases did the judge adjudicating the appeal reverse the decision of the initial judge during the 10-year study period. The appeal process increased the time to litigation closure and the indirect costs of the cases, with no changes in verdicts. Although the appeal process is a legal right for both defendants and plaintiffs, the verdict in district court could be considered to be appropriate if the verdict is in accordance with the results of the medical appraisal.

Of the cases examined in this study, approximately 80% had poor prognosis of either death or grave injury. Paradoxically, the indemnity paid in grave injury was 4.36 times higher than in expired cases. This phenomenon has been observed previously: the average indemnity paid for grave injury was $465798, whereas the average indemnity paid for deceased cases was $224174 [6]. When the indemnity amount and claim were broken down, which is an analysis that has not been performed in previous studies [6-8], it was shown that the indemnity payment to grave injury patients rose as a result of the higher medical expenses, including long-term care fees, of grave injury patients. The noneconomic damages awarded were similar for both grave injury and deceased patients. If the compensation payment system provides higher indemnity for patients with grave injury than those that suffer death, it creates moral and economical conflicts. There would be no incentive for the health care provider to attempt to save patients where there was a possible medico-legal risk if the estimated outcome could result in grave injury. It is possible that some physicians would prefer the outcome of death to grave injury, if the indemnity paid was significantly higher. The preference of death over grave injury due to potentially higher indemnity payments has been observed previously in nonmedical environments. In Taiwan, it has been rumored that a truck driver would repeatedly roll over traffic accident victims, causing death intentionally, to prevent the high indemnity that would have to be paid if the victim had a grave injury. For example, in 2003, a perpetrator was found guilty of murder and sentenced to 13.5 years in prison because the perpetrator intention- ally backed his car over 3 traffic accident victims, causing their deaths. Thus, further discussion and investigation should be made to ensure that the compensation system to victims does not prevent a physician from attempting the necessary treatment.

In the cases examined in this study, the diagnosis error percentage was 52.4% for all included cases, which is in line with the percentages found in previous malpractice claim analysis studies (37.0%-77.14%) [6,16,19]. In contrast, the percentage of performance errors (38.1%) was higher than the percentages previously published (17.5%-23.16%) [6,16]. The diseases that ultimately led to medical lawsuits also differed from previous studies. It has previously been shown that high-risk diagnoses, including chest pain, abdominal pain, fractures, wounds, pediatric fever and meningitis, subarachnoid hemorrhage, aortic aneurysm, and epiglottitis, account for 63.75% to 66.44% of all ED closed medical claims [14,20]. In contrast, high-risk diagnoses accounted for only 31.8% of cases in our study. In malpractice claims, the most common diagnoses are fracture, cancer, meningitis, myocardial infarction, and appendicitis [6,16-19,23]. In contrast, in our study, 55.6% of all claims consisted of 3 conditions: infectious disease (27.0%), CNS bleeding (15.9%), and trauma (12.7%). There were no cases of myocardial infarction or appendicitis, which are often associated with a diagnosis error. Only 8.3% of cases with alleged performance error were deemed negligent by medical appraisal, whereas 21.2% of cases with alleged diagnosis error were deemed negligent. The low negligence rate and higher percentage of alleged performance error claimed by plaintiffs can be partially explained by the possibility that there is a gap in the understanding of the definition of standard of care between health care providers and plaintiffs in Taiwan. Negligence occurs when the treatment or diagnosis of a patient does not match the standards of care. To most physicians, the term standard of care connotes an action or treatment with average degree of care and diligence that would be an accepted practice by a consensus of the medical community or colleagues under the given circumstances. It is possible that a plaintiff expects better treatment or a better outcome than the standard of care. If a medical process falls below a standard in the mind of the plaintiff, a physician may be thought to be liable for damages for injuries or poor outcome. This may partially explain why up to 17% to 37% of malpractice claims have no identifiable error [1,6,8] and why there does not appear to be a strong correlation between adverse events and medico-legal risk [24]. It would be a grievance and unnecessary economical waste for both the defendant and plaintiff if a lawsuit is filed without deviation from the standard of care. In our study, a case was filed by a patient that claimed an indemnity payment of $200000 because the EP could not help the patient who had an out-of-hospital cardiac arrest regain spontaneous circulation after standard advanced cardiac life support treatment. The case was dismissed, without any indemnity payment, after a 2.47-year trial. Through public education, improving and clarifying the definition of the standard of care are warranted and could prevent future frivolous medical litigation.

Demographic data, specialty risk, high-risk diagnosis, and cost of

malpractice claims have been thoroughly discussed in prior research. This study provided information from a non-Western experience. It is important to identify medical errors that elicit lawsuits resulting in indemnity payments to prevent such clinical behaviors. In civil court,

to be found liable and ordered to make indemnity payments, 4 standards must be met: (1) duty to treat, (2) a breach in standard of care, (3) causation that is the breach in care that directly affects outcome, and (4) injury [24]. In most medical claims, the duty to treat and the injury to patients are obvious and require no argument. Whether causation and negligence are proven and confirmed are key factors in trial outcomes.

In the 7 cases in which indemnity was paid, all cases had a confirmation of negligence by the medical appraisal, and causation was approved in court. Of these cases, 5 cases were categorized as diagnosis error, with the most common diagnosis of CNS bleeding. missed diagnoses frequently involve multiple contributing factors, and the most common contributing factor is the misconception that tests are not required. Lack of appropriate knowledge or communi- cation among providers does not contribute to most diagnosis errors [19]. In the cases with delayed diagnoses in our study, there was 1 common feature: symptoms were initially masked by additional clinical symptoms, preventing the clinician from ordering the appropriate diagnostic test, which is the leading cause of breakdown in the diagnostic process [19]. For example, in our study, CNS bleeding was overlooked because of alcohol intoxication and ischemic brainstem stroke. In a tachycardia patient who received chest tube insertion and complained about chest pain, attention was focused on rib fracture and wound pain but not the progressive hemothorax. It has been shown previously that through the implementation of appropriate clinical guidelines, many claims are preventable and financial losses can be decreased by 23% to 46% [14]. Potential lethal diseases should be always considered and diagnosed promptly in patients, especially when the initial presentation may resemble other diseases.

In 7 cases (Table 5), negligence was identified by the court, but the

defendant won the trial, as there was no causation between the medical errors and the injury of the patient. Medical errors in these cases should also be reviewed as the defendants would have been found liable if causation was established. In contrast to the cases in which indemnity was paid, which were mainly a result of diagnosis errors, 6 of these cases in which indemnity was not paid were judged to have performance errors related to failure to order consultation and improper treatment by EPs. The delay in ordering a specialist consult was determined to be medical error in 3 cases. The EPs still won the trials because the court judged that the patient’s outcome would be the same even if the consultant visited earlier, so causation between medical errors and the complication was not established. For example, a case presented to the ED with a chief complaint of testis region pain and scrotum swelling for 3 days. Because of the relative subacute presentation, the patient was discharged by the EP without echo examination or urologist consultation under the impression of epididymitis or hernia. The final diagnosis was testis torsion, and the patient received orchiectomy, but the case was judged in favor of the EP because the orchiectomy may have been unavoidable, as necrosis of testis most often occurs in cases where symptoms have already been present for 3 days. Surgery was also indicated even if earlier consultation or examination was made appropriately. The medical care may be imperfect or even negligent, but the verdict will always be in favor of the clinician as long as the medical error does not directly relate to poor outcome. Awareness of this issue can help EPs evaluate and assess the risks of liability when facing medical malpractice claims. More importantly, it could also help EPs to identify high-risk disease and medical errors, allowing for the implementation of appropriate guidelines that will minimize medi- co-legal risk.

Limitations

There are several limitations that are noteworthy in our study design. First, we analyzed cases based on verdicts rather than medical

charts, which were not available. Although records of verdicts are detailed especially in regard to the major dispute, the detailed information may not be as complete as an integral medical record, potentially affecting the precision of the analysis of cases. Second, detailed demographic factors of the plaintiffs and defendants, including age, sex, and EP specialties and board certification information, were not provided in the verdict, preventing the identification of risk factors of the likelihood of lawsuits. Third, although the study populations consisted of all 63 cases in our nation for a 10-year period, the number of cases was still limited. Factors that may be associated with indemnity paid in Tables 1 and 2 were analyzed using Fisher exact test and the Mann-Whitney U test, but the P value was not statistically significant due to the limited number of cases with indemnity paid. Finally, closed medical claims in our study represent only the tip of the iceberg of all malpractice claims against health care providers. Thus, additional national studies of malpractice claims, especially of those closed by settlement, should be initiated, as more information on behavior that may elicit medical disputes could be found.

Conclusion

Through the analysis of the national closed malpractice Claims database over a 10-year period, we showed that EPs in Taiwan have similar medico-legal risk as American EPs, with an annual risk of being sued of 0.63%. Almost 90% of EPs win their cases but spend 57.7 +- 26.7 months waiting for the final adjudication. The mean indemnity payment was $134738. Cases in which indemnity was paid were mostly categorized as having diagnosis errors, with the leading cause of error as failure to order an appropriate diagnostic test. Case analysis can offer insight into the type of situation and the kind of behavior that leads to a malpractice lawsuit and could be used for risk management evaluation to prevent subsequent litigation.

Acknowledgment

The authors gratefully acknowledge Taiwan Court Judges Chien-Yu Liao and Yong-Hui Yang for their invaluable assistance and advice during the study. This study was supported in part by research grants from the Kaohsiung Chang Gung Memorial Hospital (CMRP-G8B0941).

References

AJEM

Analysis of closed malpractice medical claims against Taiwanese EDs: 2003 to 2012

a b s t r a c t

Introduction

Methods

The judicial system in Taiwan

Study approval

Judicial database and identification of cases of interest

Outcome measures

Data analysis

Results

Discussion

CNS bleeding Death Misdiagnosis of CNS bleeding after heparin

CNS bleeding Death Delayed diagnosis of traumatic epidural

CNS bleeding Grave Delayed diagnosis of traumatic epidural

Traumatic small bowel rupture
Procedure complications

Hemolytic anemia

Respiratory failure

Traumatic optic neuropathy

Testis torsion Permanent injury-

Ischemia stroke Permanent injury-aphasia Delayed consultation with neurologist in patient presenting with aphasia

Limitations

Conclusion

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Analysis of closed malpractice medical claims against Taiwanese EDs: 2003 to 2012

a b s t r a c t

Introduction

Methods

The judicial system in Taiwan

Study approval

Judicial database and identification of cases of interest

Outcome measures

Data analysis

Results

Discussion

CNS bleeding Death Misdiagnosis of CNS bleeding after heparin

CNS bleeding Death Delayed diagnosis of traumatic epidural

CNS bleeding Grave Delayed diagnosis of traumatic epidural

Traumatic small bowel rupture Procedure complications Hemolytic anemia Respiratory failure

Traumatic optic neuropathy

Testis torsion Permanent injury-

Ischemia stroke Permanent injury-aphasia Delayed consultation with neurologist in patient presenting with aphasia

Limitations

Conclusion

Leave a Reply Cancel reply

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A novel technique to intubate patients without reliable pulse oximetry

Traumatic small bowel rupture
Procedure complications

Hemolytic anemia

Respiratory failure