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Legal Review and Commentary
Improper transfer of heart attack victim leads to $800,000 verdict against transferring hospital
By Blake J. Delaney, Esq., Buchanan, Ingersoll & Rooney, Tampa, FL
News: A man arrived at the emergency department (ED) with chest pain. While doctors attempted to find the cause of the pain, an inadvertent dislodging of the man's intravenous line (IV) caused swelling in his arm muscle, requiring the need for an emergency fasciotomy. The hospital's subsequent electrocardiogram (EKG) and cardiac enzymes tests were interpreted as normal. Nevertheless, the man's primary care physician determined that his patient should be transferred to a second hospital for additional testing, although the stability of the patient's question was in doubt. Once transferred, the patient sustained a heart attack, and he brought suit against both hospitals and all of the providers. The primary care physician settled for $1 million prior to trial. The jury returned an $800,000 verdict against the first hospital, but it rendered defense verdicts for the second hospital and the ED physicians.
Background: A 39-year-old man presented at the hospital's ED for chest pain. The emergency department physician ordered an EKG and cardiac enzymes test, the results of which were interpreted as normal. However, while at the ED, an IV in the man's right arm was inadvertently dislodged, allowing fluid to infiltrate the surrounding tissue. This infiltration of fluid increased the pressure in the patient's arm muscle compartment and decreases the blood supply to the affected muscles, a condition known as compartment syndrome. Due to the surrounding inelastic fascia, the swelling of the man's arm muscles left no room for expansion, and, eventually, his blood supply was cut off. To prevent permanent injury to the soft tissues, doctors were required to perform an open fasciotomy by cutting away the fascia to relieve the pressure.
While surgeons performed the open fasciotomy, the ED staff decided to contact the patient's primary care physician. Although the primary care doctor did not have admitting privileges at the hospital, he came to the hospital to see his patient. He determined that despite the normal results of the EKG and cardiac enzymes, the patient required further observation, additional testing, and supplementary work-up. Accordingly, he and the ED physician arranged to transfer the patient to another hospital.
Shortly after the plaintiff arrived at the second hospital, another EKG was ordered. This EKG was interpreted as strongly suggestive of an acute myocardial infarction (AMI). Consequently, the ED physician reviewed the EKG from the first hospital that had accompanied the patient in the transfer. Realizing that the EKG from the first hospital did not have a patient name on it, the ED doctor asked for another copy to be faxed from the transferring hospital. The faxed copy was received 10 minutes later, and it confirmed that the plaintiff was suffering from an AMI. In an attempt to break up and dissolve clots in the man's blood, which are the main cause of heart attacks, the doctor at the second hospital ordered thrombolytic therapy. These drugs seek to mimic the function of natural tissue plasminogen activator, which is a clot-dissolving enzyme produced naturally by cells in the walls of blood vessels and which catalyzes the conversion of plasminogen to plasmin. Commencement of the thrombolytic therapy in this case, however, was delayed in order to stabilize the patient's blood pressure drop; the patient did not receive a thrombolytic infusion until 1½ hours after his admission to the second hospital.
The man remained in the ED for 23 hours before being transferred to the intensive care unit. Another hour passed until finally a cardiology consultant visited the patient. The consultant determined that the man had sustained heart damage from the AMI.
The patient brought suit and alleged claims of medical malpractice against both hospitals and his treating physicians for damages relating to his myocardial infarction. When he suffered a stroke 2½ years later, the man included those damages in his lawsuit, claiming that the stroke was related to the myocardial infarction. The primary care physician settled prior to trial for $1 million. Then, while in the pretrial phase against the remaining providers, the plaintiff's attorney dismissed his client's claim against the second hospital. Unbeknownst to his client, the attorney had forged the man's signature on a settlement agreement with the second hospital, purporting to release any claims in exchange for $200,000. The attorney had tried to keep all of the money for himself, but when his client inquired as to why the claim against the second hospital had been voluntarily dismissed, the attorney was forced to confess his fraudulent behavior. When the conduct of the plaintiff's attorney came to light, the court voided the settlement agreement and allowed the plaintiff to pursue a claim against the second hospital. (The attorney initially was suspended from practicing law and then disbarred by the Illinois Supreme Court in 2002.)
At trial, now represented by a new attorney, the plaintiff claimed that the negligent actions of the medical staffs and doctors had permitted clots to develop and travel to the man's brain, which caused him to suffer a massive heart attack and stroke that rendered him completely disabled. As to the first hospital and its ED, the plaintiff pointed to the dislodging of the IV in his right arm and the delay caused by sending his EKG with no name affixed to it. As to the second hospital and its ED physician, the plaintiff averred that his transfer never should have been approved by them given his unstable condition. He further maintained that this transfer actually delayed the initiation of the thrombolytic therapy.
The first hospital argued that the compartment syndrome was the result a subsequent fall unrelated to the hospital visit. The jury ultimately returned a verdict of $800,000 against the first hospital, but found no liability on the part of the second hospital or any of the other doctors.
What this means to you: This case presents a multitude of issues that should trigger risk management involvement. The most notable problem in this case, and the one that seemingly caused many of the problems experienced by the patient, was the policy and procedure and actual practice regarding insertion, anchoring, and monitoring of IVs. "Emergency departments are places where patients are moved for various examinations and tests, providing frequent opportunities for an IV or the rate regulator to become dislodged," says Leilani Kicklighter, RN, ARM, MBA, CPRHM, consultant/principal with The Kicklighter Group, Tamarac, FL, and past president of the American Society of Healthcare Risk Management. Such dislodging can allow the fluid to flow freely, which causes an infiltration, extravasation, or even compartment syndrome, as was the case in this scenario. "Practice must follow policy, and policy must reflect actual practice. Both should reflect the accepted standard of practice. In this case, the hospital's policy and actual practice should be revisited," recommends Kicklighter.
The alleged arm injury occurring in the area of the IV-related compartment syndrome raises further concerns. Kicklighter questions the hospital's judgment as to placement of the IV, considering the alleged prior trauma in the area where the IV was placed. "This is yet another aspect of the policy and procedure that should be addressed with the ED staff," she notes.
Another issue raised in this case is the transfer of the patient from the first hospital to the second hospital. Even though this patient's primary care physician did not have privileges at the first hospital, there are ways for a physician to obtain emergency and one-case privileges. Kicklighter questions why this was not pursued in this case, rather than transferring this patient to another hospital. In fact, even though this scenario does not go into detail about the risks and benefits of the transfer as compared with remaining at the first hospital or about whether the second hospital actually accepted the patient, risk managers must be aware that such transfers are governed by the rules of the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA imposes various requirements on hospitals before being permitted to participate in the transfer of a patient, including ensuring that the patient suffering from an emergency medical condition is stable and that the transfer is "appropriate." Kicklighter also questions why there seemed to be such a rush to transfer the patient, especially given that he had just undergone a fasciotomy to relieve the compartment syndrome. Although the scenario does not give sufficient information regarding the patient's primary care physician's specialty, Kicklighter questions why a cardiologist was not summoned in light of the signs and symptoms that brought this patient to the ED. After all, an EKG does not always immediately reflect the damage to the heart muscle, as was the case in this scenario.
Kicklighter also is concerned by the fact that the second hospital interpreted the patient's EKG as showing an AMI that had not been diagnosed before the transfer. "One of the ED quality monitoring processes is the rereading of EKGs and radiology films — known as 'wet readings.' Because the literature reflects that missed diagnoses or misdiagnoses of myocardial infarction is a primary cause of lawsuits brought against a hospital's ED, qualified cardiologists should reread EKGs and compare those readings with the readings performed by the ED physician," suggests Kicklighter. She also recommends that X-rays taken by a radiologist be reread and compared to the wet reading done by the ED physician. "Those that do not coincide should be referred back to the emergency room for follow-up, and then the patient should be called or referred to his or her primary care physician," states Kicklighter.
Any readings that do not match also should be tracked as "incidents" by risk management and by medical peer review to determine whether a particular physician or type of missed/misdiagnosis is associated with a pattern or trend. "Had the EKG been appropriately diagnosed at the first hospital, the thrombolytic therapy might have been more timely initiated, and the transfer to the other hospital might not have been undertaken," surmises Kicklighter.
The lack of any identification indicating the patient's name on the first EKG strip faxed to the second hospital is also a significant risk management issue requiring attention. "The process for legibly and consistently labeling all parts of the medical record concurrently should be reviewed and emphasized," encourages Kicklighter. "Not labeling records is a practice below the acceptable standard of care." Unlabeled parts of the medical record sometimes do not make it to the medical record, leading to:
Kicklighter also shares concern with the manner in which the thrombolytic therapy was administered. There are protocols for conducting a thrombolytic infusion, the administration of which should be included in the standard of care for treating a potential cardiac injury such as an AMI. Although the scenario does not discuss the protocols in place for thrombolytic therapy at the either hospital, Kicklighter emphasizes that risk management should review such protocols and verify that all ED physicians are knowledgeable as to the process.
The final area of concern relating to the hospitals highlighted by Kicklighter in this scenario involves the credentialing of physicians. Credentialing of ED physicians is a process of the ED and the hospital's medical staff, with final approval at the board level. "Risk management should have some involvement in the credentialing of all physicians and surgeons. Risk management can provide a different perspective to the process and review with the chief or chair of each service the trends and patterns of the quality monitors, incident report trends by physician, potentially compensable events (PCEs) — whether asserted and unasserted — and other peer review issues by physician.
Finally, Kicklighter points to some of the issues raised by the conduct of the individual professionals involved in this case. First, the fact that a cardiologist did not arrive to consult and examine the patient in the second hospital until after the thrombolytic therapy had begun is an area of risk management concern. Under EMTALA, for example, hospitals are required to maintain on-call physicians (including specialists and subspecialists) to assist in the screening, examination, or transfer of patients, and hospitals are required to maintain a list of those physicians who are on-call. Once a physician is called in, the physician must show up, and hospitals are required to ensure that an on-call physician responds within a reasonable time. Kicklighter suggests that the standard for an on-call physician to respond is 30 minutes, a benchmark that clearly was not met in this scenario. She also notes that the definition of respond depends on the hospital's definition and the severity of situation, both of which are determined by the ED physician. In some hospitals, respond means only a callback.
If a physician does not respond when summoned, EMTALA requires the hospital to report the physician and, if the patient is then transferred to another hospital, give the physician's name and address to the receiving hospital. The hospital should have policies in place to define a physician's responsibilities and to outline what should happen if an on-call physician cannot respond due to circumstances beyond his or her control. Penalties to the hospital can include a $50,000 fine and loss of Medicare certification. EMTALA, however, does not create a mandate for physicians to serve on-call or to be on-call at all times. In fact, a doctor may even perform surgery while on-call, if there is a suitable backup plan. EMTALA's requirements are mirrored in the laws and regulations of many states. In Florida, for example, the Board of Medicine has the authority to penalize an on-call physician for failing or refusing to respond, conduct that is deemed to be practicing below the standard of care.
Second, the conduct of the plaintiff's attorney in this case was — needless to say — less than honorable. The attorney's forging of his client's signature on a purported settlement and attempt to divert his client's client money reminds Kicklighter that risk managers and insurance carriers should not be too quick to dispose of claim files after a verdict or settlement agreement has been reached/obtained. Statutes can be overturned, people can act in unethical ways, and a many other circumstances could arise that would require a retrial or a dusting off of the claim file. The issues presented in this case span the gamut and go to show that no area of service should be ignored by a risk manager. Risk management's involvement in and correction of the foregoing issues will go a long way in reducing errors, injuries, and claims and in increasing overall patient, staff, and community satisfaction.
• Cook County (IL) Circuit Court, Case No. 01L-14480.