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Risks rising for 'delayed diagnosis' ED litigation
Size of claims often are substantial
Editor's Note:This is the first of a two-part series on delayed diagnosis in the ED. This month, we cover general liability risks and documentation. Next month, we'll report on why legal risks involving time-dependent medications and interventions are increasing.
A growing number of ED malpractice lawsuits are alleging that a patient was harmed due to delayed diagnosis-and risks are reportedly increasing. Failure to diagnosis is "one of the most common causes of ED malpractice litigation," says Matthew Rice, MD, JD, FACEP, an ED physician with Northwest Emergency Physicians of TEAMHealth in Federal Way, WA.
High-risk areas, says Rice, include vascular-related problems (coronary artery disease, pulmonary embolism, and stroke, aneurysms/ dissections, and intra-abdominal ischemia); infections (sepsis, meningitis, appendicitis, and cellulites/fasciitis); and trauma-related problems (fractures and foreign bodies).
Other scenarios that have a growing potential for litigation, says Rice: Failing to recognize medication-related problems; failing to recognize abuse of spouses, the elderly, and children; and failing to diagnose increasing incidences of unusual infectious problems.
Many ED "delayed diagnosis" cases involve patients with devastating outcomes-death or substantial disability, notes John Burton, MD, residency program director for the Department of Emergency Medicine at Albany (NY) Medical Center. "As a consequence, the size of claims are often substantial-routinely in the hundreds of thousands and millions of dollars per case."
One potential malpractice lawsuit for delayed diagnosis in emergency medicine results from a misdiagnosis. "An example of this would be missed acute coronary syndrome," says Jesse M. Pines, MD, MBA, MSCE, assistant professor of emergency medicine and epidemiology at the Hospital of the University of Pennsylvania in Philadelphia. "In this case, a patient may be discharged from the ED and later comes back and another physician identifies the diagnosis, or in the worst case scenario, the patient goes home and dies from a cardiac arrest."
In other scenario, the patient may also be misdiagnosed in the ED, and then gets a correct diagnosis while in the hospital. An example would be a patient who is admitted with a diagnosis of pneumonia, but has hypoxia that remains persistent despite antibiotics. A chest computerized tomography (CT) scan is ordered, and the patient is shown to have a pulmonary embolism.
"Diagnostic delays can cause worse outcomes, in some cases on the order of hours in, for example, meningitis. Other delays can be on the order of days to years, such as a missed diagnosis of cancer," says Pines.
Pines says that he thinks that rates of diagnostic delays due to misdiagnosis are likely to decline, as a result of greater use of radiography and laboratory testing.
"But because ED crowding appears to be worsening across the U.S., I think that cases related to ED delays on the order of hours will probably increase," says Pines.
Why are risks increasing?
"With each year, it seems that emergency physicians are increasingly expected to be the physician of record in ordering medications and therapy, and holding the responsibility for screening patients for suitable therapy or diagnostic testing," explains Burton.
Emergency physicians are expected to identify patients who will benefit from timely antibiotic administration or revascularization therapy, for example. "In recent years, the access and involvement of specialists in identifying these patients has decreased in nearly every hospital practice," says Burton.
Burton says that one bright spot is that most states have adopted legislation regarding the qualifications of plaintiff's experts with requirements that the "standard of care" be specialty-specific. In other words, emergency physicians are held to the standards as characterized solely by other emergency physicians, not by physicians practicing outside the specialty.
In some states, moreover, the standards can only be attested to by a physician in similar practice as well as practicing actively in that state.
The lesson for emergency medicine, says Burton: There is a need to actively debate diagnosis and treatment standards at the specialty level, "with local and state groups of emergency physicians facilitating communication of expected practice standards."
Timing may be beyond your control
Timing issues can sometimes result in significant damages, "even if the factors involved are not always under the emergency physician's control," according to Steven Davidson, JD, a partner with Omaha, NE-based Baird Holm. One particularly high-risk scenario: If a patient's outcome is altered because of an ED physician's inattention. "That is a dangerous subject matter, in my view," says Davidson. "ED physicians can sometimes get drawn into things that aren't necessarily their fault-they may be more a victim of circumstances than anything else-but at the end of the day, the physician in charge of the patient is responsible for making sure they get the care they need in a timely way."
It's a difficult situation if things "turn south" when closer attention by the ED physician sooner in the process might have made a difference, says Davidson. "Plaintiff lawyers look for that. Where time of treatment is important-cardiac care or stroke are good examples-I've seen cases get some legs under them and go somewhere," he says. "ED physicians have a higher level of attention paid to their decisions, sometimes, than other doctors do."
However, Joseph J. Feltes, JD, a partner with Canton, OH-based Buckingham, Doolittle & Burroughs, notes that the delay in diagnosing a patient's condition must have caused some injury. "For example, an Alabama court recently reversed a verdict for a patient with hydrocephalus because the patient failed to show that she suffered any actual injury by the ED physician's failure to order an [magnetic resonance imaging] or transfer her to another hospital," he says.1
Delays to diagnosis are frequently cited in acute myocardial infarction and stroke cases. "These types of cases often have very bad outcomes for patients-disability or even death-which lead patients and their families to ponder the impact of delays to diagnosis, perceived or real," says Burton.
Risk is mitigated in this scenario
One "delayed diagnosis" risk area for ED physicians involves a case where the ED diagnosis translates to a treatment plan or series of interventions that would affect a patient's outcome. For example, if a pulmonary lesion found on a CT scan is not adequately followed up, the patient may have a delay to diagnosis of lung cancer of weeks, months or longer.
"At some point, there is an important interval that ultimately affects therapy for the disease and then survival," says Burton. "With the cancer analogy, weeks don't matter, months often do, and a year most certainly would in most cancers."
Another example might be subarachnoid hemorrhage, says Burton, well-known as a disease with "sentinel bleeds" occurring in many patients as a precursor to major hemorrhages. "While the sentinel bleed event may not typically cause morbidity or mortality, it acts as an essential opportunity to make the diagnosis before a more devastating bleed or sequelae, such as vasospasm or hydrocephalus, occurs," says Burton.
In this case, there is no time-dependent immediate intervention in the ED-rather, there is an opportunity to make a diagnosis that is important to the patient's well-being. "When missed, these can translate to delays and problems for the patient at some point," says Burton.
Other examples would be aortic aneurysm or dissection. "Both of these diagnoses have a shorter time-frame for nailing the diagnosis," says Burton. "In these cases, the ED physician is sued for a delay to diagnosis that often translates to delays in therapy on the order of days, months, or years."
However, Burton notes that in this type of scenario, the emergency encounter is often one of many physician encounters-the patient has likely seen other ED physicians, primary care physicians and medical specialists, so the risk to the individual ED physician is mitigated.
"Additionally, there is typically a great deal of doubt in these cases-both as to the impact of the specific delay to diagnosis on the patient's outcome, and also, at whose hands the responsibility for the delay should rest," adds Burton.
Interventions can reduce risks
Pines says that interventions that may be able to reduce the likelihood of a misdiagnosis are better training (including board certification in emergency medicine) and also the more liberal use of ED-based testing.
"While the latter can be seen as a waste of resources, a lower threshold to obtain CT scans will likely result in lower rates of misdiagnosis," says Pines.
Rice says that various interventions can be useful in reducing risks of delayed diagnosis. These include proper charting, careful documentation (especially medical decision making patterns and facts) quality assurance processes, peer reviews, proper referral and documentation, appropriate practice standards, aggressively pursuing the worst-case diagnosis, and carefully informing patients of options and risks.
If your ED patient's care was delayed and you suspect the patient could be harmed as a result, Rice says that you should immediately attempt to "remediate events to try to prevent an adverse outcome, or to prevent a problem from getting worse. Honesty is critical and rapid action is necessary," he says.
It is not uncommon for an ED to have a lab test or radiographic reading reported that indicates a medical problem was not properly diagnosed, notes Rice. "Rapid review and recognition of these findings, and communication with the patient are critical to avoid potential serious outcomes," he says. For instance, a nodule on a chest radiograph needs follow up, and a positive blood culture might require the patient to get antibiotics.
"It is imperative for the patient to be contacted and appropriate treatment to begin as soon as possible," says Rice. "This helps mitigate risk and assists in service recovery. Showing patients you care, even if previous care was not perfect, is a much better risk management strategy than hoping nothing 'bad' happens to the patient."
What should you document?
If the jury hears that a patient's diagnosis was delayed, making excuses probably won't help you, says Catherine Vretta, MD, an ED physician at St. John Hospital and Medical Center Emergency Center in Detroit, MI. "By saying things like, 'the lab was slow,' or 'the computer being down from 3 a.m. to 5 a.m. prevented me from looking at the X-ray itself'-I just don't see how that is going to help you," she says. "People tend to look at these things as being under your control-it's your ED, you are responsible."
One exception that Vretta says should be documented: An on-call specialist's failure to come to the ED in a timely manner. "If you don't have a neurosurgeon on call, I think that would probably be viewed as out of your control-and less your 'fault,'" she says. "If you are relying on a specific specialist and you can't get ahold of them, I would absolutely document that to protect yourself to whatever degree."
Burton says that when documenting, "as is always the case, tell the truth. A fabricated record will always increase risk for any questionable event. The facts should be documented calmly, and completely, without an aggressive tone or speculation to motives for delays by consultants or staff."
If there is a clinically significant delay in care, such as a missed ST segment elevation myocardial infarction (STEMI), Pines recommends documenting what happened, including any events which might have contributed to the delay.
"For example, let's say there is a trauma code going on and an hour later, while you're catching up, you realize that there is someone with a STEMI or stroke who was initially unrecognized," he says. "While it does not completely exonerate you for the delay, if the case enters the malpractice system, you will have a better rationale as to why the delay happened, especially if it was out of your control, such as the case of the trauma code."
1. Crutcher v. Williams (Ala. 1/9/09) 2009 WL 51266.
John Burton, MD, Residency Program Director, Department of Emergency Medicine, Albany Medical Center, Albany, NY. Phone: (518) 262-4050. E-mail: BurtonJ@mail.amc.edu.
Steven D. Davidson, JD, Partner, Baird Holm, Omaha, NE. Phone: (402) 636.8227. E-mail: firstname.lastname@example.org
Joseph J. Feltes, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5225. E-mail: JFeltes@BDBLAW.com.
Jesse M. Pines, MD, MBA, MCSE, Department of Emergency Medicine, University of Pennsylvania, Philadelphia. Phone: (215) 662-4050. E-mail: Jesse.Pines@uphs.upenn.edu.
Matthew Rice, MD, JD, FACEP, Northwest Emergency Physicians of TEAMHealth, Federal Way, WA. Phone: (253) 838-6180, ext. 2118. E-mail: Matt_Rice@teamhealth.com.