Malpractice risks with special needs patients

Can you properly examine and treat a 400lb patient in your office setting? How about a four-year-old in your ED? A deaf woman in Labor and Delivery? An 82-year-old in the endoscopy clinic? Do patients who present with challenges beyond their immediate health issues increase your risk for a diagnostic or treatment error?

Once-accepted practices, e.g., jerry-rigging adult medical equipment for a toddler, guesstimating the weight of a patient who exceeds the office scale, allowing family members to interpret medical discussions, are now vestiges of a less specialized (and less litigious) past. Instead, patients with special needs—and their advocates—are gaining traction in obtaining accommodations to reduce their risks of substandard care.

For example:

  • the 2010 patient protection and affordable care act will require health care providers to meet new requirements for diagnostic equipment to ensure that obese patients can be properly examined in all settings,
  • a 2010 book from the Joint Commission explores the risks children face in EDs ill-equipped for pediatric procedures, and
  • hospitals are now expected to credential individuals who provide interpretation services.

Although no profile depicts a “typical” patient—nor a typical plaintiff—a review of 8,127 recent medical malpractice cases in the CRICO national database indicates that “atypical” patients are common among those who allege they were subject to negligent care. For example:

  • 520 cases—excluding slips/falls—involved patients over age 75,
  • 86 cases involved an issue with a language barrier, and
  • 48 cases involved ED patients younger than 13 years old.
  • Further analysis of 1,171 cases asserted against Harvard-affiliated providers from 2005-2010 reveals that 29 involved an obese patient.

This analysis does not reveal which, if any, of these cases were triggered by an inadequate accommodation of the patient’s special needs, but it does demonstrate that the population of plaintiffs reflects the diversity of the population of all patients.

The extent to which a provider needs to gear up for patients who may require special accommodation depends on the size of the setting, third-party requirements, and the likelihood of such encounters. Full-service hospitals are obliged, or required (e.g., ADA, EMTALA, Joint Commission), to meet the broadest set of special needs with proper equipment and training. A small group practice may not have to be ready for patients at all the extremes of age or physical condition or communication impediments, but proper planning for realistic scenarios is prudent.

Substandard preparation puts patients at risk of harm and providers at risk of potentially indefensible allegations of negligence. Practitioners and facilities primed and equipped for special needs patients are more likely to avoid the most egregious and damaging errors (and lawsuits).

Jock Hoffman is the Patient Safety Education Program Director for CRICO, the malpractice insurance provider for physicians and hospitals affiliated with Harvard Medical School.

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