All 27 chapters in this guide
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Reviewed by Kanwar Partap Singh Gill, MD · sources checked
Malpractice claims are not distributed evenly across medicine. They cluster around a recognizable set of clinical situations — the abnormal result that never reached a plan, the chest pain sent home, the anticoagulant continued through a bleed, the deteriorating patient whose vital signs were charted but not acted on. Recognizing those patterns is useful to every reader of this guide. For physicians and institutions, the patterns identify where reliability work pays off. For attorneys, they identify the questions a careful review asks first. For patients and families, they explain why a single bad outcome is investigated by asking how the process of care unfolded rather than only what the final diagnosis was.
This chapter surveys the principal domains. For each it describes the usual failure modes, what the record tends to show, the standard-of-care and causation questions that decide the case, and the lever that most often prevents the harm. It does not suggest that an outcome in any of these domains implies negligence. Every domain also produces bad outcomes despite careful care, and the elements chapter explains why that distinction is the whole of the legal analysis.
What the claims data show, and what they do not
Two large data sources are commonly used to describe the landscape, and both have limits that should be stated whenever they are cited.
An analysis of the federal National Practitioner Data Bank covering 1986 to 2010 examined 350,706 paid claims. Diagnostic errors were the leading allegation type (28.6% of claims) and accounted for the largest share of total payments (35.2%). Diagnostic-error claims more often involved death than other allegation groups (40.9% versus 23.9%); most diagnostic-error claims arose in outpatient care (68.8%), but inpatient diagnostic errors were more often lethal (Saber Tehrani and colleagues, BMJ Quality & Safety, 2013).
A second analysis used the Controlled Risk Insurance Company's Comparative Benchmarking System, a large insurer-contributed closed-claims database, for 2006 to 2015. Of 11,592 diagnostic-error cases, 7,379 involved high-severity harm. Three disease groups — vascular events, infections and cancers, the "Big Three" — accounted for 74.1% of high-severity cases; the most frequent single disease in each group was stroke, sepsis and lung cancer respectively. Clinical-judgment factors contributed in 85.7% of cases (Newman-Toker and colleagues, Diagnosis, 2019).
These studies describe claims and payments, not the true frequency of negligent care. Paid claims reflect which injuries are compensable, which are litigated, and which are settled; many negligent injuries never become claims, and some claims are paid where negligence is disputed. The figures are useful for setting priorities. They are not evidence about any individual case.
Diagnosis and delayed diagnosis
Usual failure modes. An incomplete history or examination; failure to consider a dangerous alternative diagnosis; not ordering an indicated test; misreading a test; not following up a result; not communicating a result or a plan to the patient. In a study of 181 closed ambulatory claims involving harmful diagnostic errors, the most common breakdowns were failure to order an appropriate test (55%), failure to create a proper follow-up plan (45%), failure to obtain an adequate history or examination (42%) and incorrect interpretation of a test (37%); cancers — chiefly breast and colorectal — were involved in 59% (Gandhi and colleagues, Annals of Internal Medicine, 2006).
What the record shows. The differential diagnosis, if one was documented; the tests ordered and not ordered; return precautions; whether the patient was told what to watch for; and the chain of results and messages that followed.
Deciding questions. What would a reasonable clinician have considered given what was known at that encounter, without hindsight? What would earlier recognition probably have changed? Because the causation question is often decisive, this domain is treated in its own chapter: missed and delayed diagnosis.
Prevention lever. A documented differential for high-risk presentations, explicit safety-netting, and closed-loop systems for results and referrals.
Test results and referrals
Usual failure modes. A result returns to an inbox that is not monitored during absence; a result is acknowledged but not acted on; a referral is ordered but never scheduled, or scheduled and never completed; a pending result at hospital discharge belongs to no one; a recommendation for repeat imaging in a radiology report is not carried into the plan.
What the record shows. Timestamps of result receipt and acknowledgment, inbox routing, referral status, messages to the patient, and missed-appointment records. Audit trails frequently decide whose inbox a result reached and whether it was opened.
Deciding questions. Who owned the result or referral under the practice's actual workflow? Did the patient receive the information needed to participate in follow-up? Did a patient's missed appointment break the chain, and was that reasonably addressed? How much of the failure was individual and how much institutional — routing rules, coverage arrangements, staffing? The institutional technology chapter explains how control over these systems is mapped.
Prevention lever. Defined ownership of every result and referral, coverage rules for absence, tracking of open loops, and patient notification of all results, normal and abnormal.
Medication prescribing and monitoring
Usual failure modes. Prescribing despite a documented allergy or interaction; failing to adjust for kidney or liver function; failing to monitor drugs that require laboratory surveillance; continuing a high-risk medication after a relevant change; reconciliation errors at transitions of care; dispensing and administration errors in hospitals. Medications identified by safety organizations as "high-alert" — such as anticoagulants, insulin, opioids and chemotherapy — cause disproportionate harm when errors occur.
California-specific duty: CURES. Before prescribing a Schedule II, III or IV controlled substance to a patient for the first time, a prescriber must consult the patient's controlled-substance history for the past 12 months in the state's CURES database, and must do so at least once every six months thereafter while the substance remains part of the patient's treatment, subject to the statute's exemptions (Health and Safety Code section 11165.4). The statute does not itself define the standard of care for opioid prescribing, but a failure to consult CURES when required is a documented departure that a plaintiff will emphasize, and consultation records are among the first items reviewed in an overdose case.
Deciding questions. Was the risk known or knowable from the record at the time? Was monitoring appropriate for the drug and the patient? Did the medication error cause the injury, or did the underlying illness?
Prevention lever. Reconciliation at every transition, monitoring protocols tied to the order, pharmacist review, and decision support that is specific enough to be heeded.
Procedures and surgery
Usual failure modes. Wrong-site, wrong-procedure or wrong-patient surgery; retained surgical items; inadequate informed consent; technical injury to adjacent structures; failure to recognize a complication postoperatively; inadequate monitoring after sedation.
What the record shows. The consent, the time-out documentation, counts, the operative report, anesthesia and recovery records, and the postoperative course. Some events are reportable to the California Department of Public Health as adverse events under Health and Safety Code section 1279.1, which is explained in disclosure, apology and reporting.
Deciding questions. Was the complication a known risk of a properly performed procedure, or the result of a technical departure? Was it recognized and treated in time? Was consent adequate and did it match the procedure performed — an issue that can convert a negligence claim into a battery claim, as explained in informed consent?
Prevention lever. Standardized verification and counting processes, specific consent conversations, and defined postoperative escalation criteria.
Obstetric and neonatal care
Usual failure modes. Delayed response to concerning fetal heart rate patterns; delayed operative delivery; shoulder dystocia management; failure to recognize and treat maternal hemorrhage, hypertensive disorders or infection; neonatal resuscitation and early neonatal care.
Why the domain is distinctive. Injuries can be catastrophic and lifelong, so economic damages — future care, lost earning capacity — dominate valuation; the limitation periods for minors can extend the time to file; and causation disputes about the timing of a neonatal brain injury often require several specialties (obstetrics, neonatology, pediatric neurology, neuroradiology, placental pathology).
Prevention lever. Shared interpretation of fetal monitoring, simulation of obstetric emergencies, hemorrhage and hypertension protocols, and clear escalation pathways between nursing and physicians.
Emergency and urgent care
Usual failure modes. Discharge of patients with time-sensitive conditions — myocardial infarction, stroke, aortic dissection, sepsis, pulmonary embolism, spinal infection — under a benign diagnosis; inadequate reassessment after treatment; discharge without meaningful return precautions; failure to follow up on results that return after discharge.
California-specific rules. In actions against physicians providing emergency coverage in a general acute care hospital emergency department, Health and Safety Code section 1799.110 limits expert standard-of-care testimony to physicians with substantial recent emergency-department experience and directs the trier of fact to consider the emergency circumstances. See expert witnesses. Hospital emergency obligations under Health and Safety Code section 1317 and federal EMTALA are discussed in hospitals and institutions.
Deciding questions. Was the dangerous diagnosis reasonably considered and excluded with the tools available? Was the discharge decision reasonable, and did the patient understand when to return? Where the department was crowded or boarding admitted patients, did system conditions contribute? The site's analysis of emergency department boarding discusses that system context.
Prevention lever. Structured reassessment before discharge, specific return precautions, and callback processes for results that arrive after the patient leaves.
Hospital medicine: deterioration, sepsis, falls and pressure injuries
Usual failure modes. Vital-sign changes documented but not escalated; delayed recognition and treatment of sepsis; failure to prevent or respond to falls; development of pressure injuries; venous thromboembolism without assessed prophylaxis; inadequate handoffs at shift change.
What the record shows. Flowsheets, nursing notes, early-warning scores and alerts, call logs, rapid-response activation, and the timing of physician evaluation. These cases are usually institutional as well as individual: staffing, alert configuration and escalation policies are central evidence, and California's minimum nurse-to-patient ratios are a frequent issue.
Deciding questions. When did the deterioration become recognizable? Who was notified and when? What would earlier response probably have changed? Was a fall or pressure injury preventable with reasonable assessment and precautions, or did it occur despite them?
Prevention lever. Escalation criteria that are trained and followed, sepsis recognition processes consistent with current federal hospital sepsis program guidance, fall and skin risk assessment with linked interventions, and structured handoffs.
Behavioral health and suicide risk
Usual failure modes. Inadequate risk assessment at intake, transition or discharge; failure to act on information from family; failure to secure the care environment in inpatient settings; discontinuity after discharge from an emergency department or hospital.
Deciding questions. Was the assessment reasonable given what was known, recognizing that risk prediction is imperfect? Were reasonable precautions taken for the assessed level of risk? Was a follow-up plan in place and communicated?
Prevention lever. Structured risk assessment and safety planning, attention to collateral information, and reliable follow-up after discharge.
Handoffs and communication
Many claims that are filed as diagnosis or medication claims are, at bottom, communication failures: between shifts, between services, between hospital and primary care, between clinician and patient. The record often shows that each participant acted reasonably on the information they had, while the information that mattered was lost between them. This pattern is where institutional responsibility most often arises, because the communication system — templates, discharge summaries, referral workflows — belongs to the organization rather than any individual clinician.
Telehealth
Telehealth is subject to the same standard of care as in-person care for the services delivered. Before delivering care by telehealth, the provider initiating it must inform the patient about the use of telehealth and obtain verbal or written consent, which must be documented; failure to comply is unprofessional conduct (Business and Professions Code section 2290.5). Telehealth claims usually turn on whether the limitations of a remote examination were recognized — whether a condition that required in-person examination, testing or emergency care was managed remotely — and on whether the patient was told when and where to seek in-person care.
Language access and interpreters
When language or communication barriers exist between patients and staff of a general acute care hospital, California law requires arrangements for interpreters or bilingual professional staff to ensure adequate and speedy communication (Health and Safety Code section 1259 and related requirements). In malpractice cases, language access rarely stands alone as the claim; it appears inside a consent dispute, a missed history, a misunderstood discharge instruction or a medication taken incorrectly. The record should show how communication occurred and by whom it was interpreted. See informed consent.
Summary: domains, records and levers
| Domain | Records that usually decide it | Most common contested question | Prevention lever |
|---|---|---|---|
| Diagnosis | Notes, differential, tests ordered, return precautions | What was knowable then, and would earlier diagnosis have changed the outcome? | Differential and safety-netting for high-risk presentations |
| Results and referrals | Inbox and referral logs, audit trails, patient messages | Who owned the open loop? | Closed-loop tracking with coverage rules |
| Medication | Medication lists, monitoring results, CURES reports, administration records | Was the risk known and monitored? | Reconciliation and linked monitoring |
| Procedures | Consent, time-out, counts, operative and recovery records | Known complication or technical departure? | Verification, specific consent, escalation |
| Obstetrics | Fetal monitoring, labor and delivery records, neonatal records | Timing of injury and response | Shared interpretation and emergency drills |
| Emergency care | Triage, reassessment, discharge instructions | Was the dangerous diagnosis reasonably excluded? | Reassessment and return precautions |
| Hospital deterioration | Flowsheets, alerts, call logs, staffing | When was it recognizable and who was told? | Trained escalation, adequate staffing |
| Behavioral health | Risk assessments, collateral information, discharge plans | Were precautions reasonable for the assessed risk? | Safety planning and follow-up |
| Telehealth | Telehealth consent, documentation of limitations | Was in-person care needed and advised? | Clear criteria for converting to in-person |
Sources
- Saber Tehrani AS, et al. 25-Year summary of US malpractice claims for diagnostic errors 1986–2010: an analysis from the National Practitioner Data Bank. BMJ Qual Saf. 2013. PubMed 23610443.
- Newman-Toker DE, et al. Serious misdiagnosis-related harms in malpractice claims: the "Big Three" — vascular events, infections, and cancers. Diagnosis (Berl). 2019;6(3):227–240. PubMed 31535832.
- Gandhi TK, et al. Missed and delayed diagnoses in the ambulatory setting: a study of closed malpractice claims. Ann Intern Med. 2006;145(7):488–496. PubMed 17015866.
- Health and Safety Code § 11165.4 (CURES consultation): official text; § 1259 (interpreters in general acute care hospitals): official text; § 1279.1 (adverse events): official text; § 1799.110 (emergency expert testimony): official text.
- Business and Professions Code § 2290.5 (telehealth consent; amended by SB 402, Stats. 2025, ch. 413): official text.
- Institute for Safe Medication Practices (now part of ECRI), high-alert medications in acute care settings; Centers for Disease Control and Prevention, Hospital Sepsis Program Core Elements.
General legal and clinical education; not individual legal or medical advice.