Does ED ultrasound really increase risk of a lawsuit?
In fact, the opposite is true, say experts
By Staci Kusterbeck, Contributing Editor
With an increasing number of emergency department (ED) physicians using ultrasound, are malpractice lawsuits also on the rise? Quite the contrary, according to proponents of ED ultrasound. "As long as we are observing proper credentialing and training guidelines, we are actually decreasing our risk—considerably so," says Michael Blaivas, MD, RDMS, immediate past chair for the American College of Emergency Physicians (ACEP)'s ultrasound section and chief of the section of emergency ultrasound in the department of emergency medicine at Medical College of Georgia in Augusta.
The major legal pitfall of ED physicians doing ultrasound is that, in some cases, they may not have received the proper training or hospital credentialing, adds Blaivas. "Most problems such as misses occur in the hands of novice emergency sonologists who are not ready to make decisions from their scans," he says.
So when can ED physicians begin making clinical decisions based on ultrasound scans? At a moderate level of experience, but no one should make clinical decisions based on their ultrasound examinations if they are not credentialed to do so by the hospital, says Blaivas. "If this sounds vague, it is because many hospitals have different credentialing criteria for emergency ultrasound," he says. Currently, the only specialty-wide guidelines for training and credentialing are those that were created by ACEP. (To access the guidelines, go to www.acep.org. Under "Practice Resources," click on "Issues by Category," "Ultrasound," "Emergency Ultrasound Guidelines.")
However, Blaivas cautions that if the hospital in question has very loose criteria that do not meet national standards, then the physician should voluntarily refrain from making decisions until she or he has reached national standards for credentialing.
"In the past the greatest mistake of emergency physicians was assuming that a one, two or three-day training course made you capable of making decisions from your ultrasound examinations," Blaivas says. "This is not the case. The initial course is just a starting point for more learning and a progression to credentialing."
Technical expertise, a quality control system, credentialing, and working closely with radiology are all incumbent on physicians who use ultrasound, says Corey M. Slovis, MD, chairman of the department of emergency medicine at Vanderbilt University Medical Center in Nashville, TN. "This is a time when what being credentialed means is very unclear," he says. "In the current environment, ED physicians need to follow closely any formal recommendation, from ACEP, AAEM [the American Academy of Emergency Medicine], or emergency ultrasound organizations."
The most likely scenario for an ED physician to be sued? When a decision is made to send the patient home based on an inappropriately interpreted ultrasound, which delays surgical intervention on a serious issue resulting in a bad outcome, says Bruce David Janiak, MD, vice chair of the department of emergency medicine at Medical College of Georgia. "For the most part, the major pitfalls are doing ultrasound without the proper background and training," he says. "Otherwise it's a major benefit rather than a setback."
Focused exam is key
One potential problem is failing to keep proper focus to the examinations done in the ED. "For instance, when I scan an elderly patient with abdominal pain that is radiating to the back to rule out an AAA [abdominal aortic aneurysm] I am not scanning the entire abdomen for all problems—I have a very focused goal," says Blaivas. "I am not pretending I can diagnose a mass in the tail of the pancreas."
The same is true for scans of the gallbladder, kidneys, heart, pelvis, and for deep venous thrombosis (DVT). Be clear with patients that this is a focused examination to answer a specific question, advises Blaivas, such as: Is there an AAA? Is there an intrauterine pregnancy? Is there a pericardial effusion? or Is there a DVT?
"If you have done an echo [echocardiogram] for pericardial effusion, say there isn't one, and the patient dies of tamponade, that's a problem," says Christopher L. Moore, MD, RDMS, FACEP, assistant professor for the section of emergency medicine at Yale University School of Medicine.
That may be fairly obvious, but many ED physicians are worried about missing things they shouldn't necessarily be expected to find. "People worry about that, specifically missing a malignancy on an image, but I would hope it would hold up in court that we are not looking for those things when we are doing focused ultrasound," says Moore. "We aren't looking for a liver malignancy or other things that are not emergent complaints. We are looking for things that need to be intervened on right now."
Moore recommends using a preprinted template or language stating, "This is a limited focused ultrasound and is not meant to replace a comprehensive ultrasound done by a radiologist or cardiologist."
No increase in lawsuits
Despite its growing use, there has been no apparent surge in malpractice allegations involving ultrasound in the ED. "Of 850 cases I've reviewed in 30 years, I've only had one that involved misinterpretation of ultrasound by an emergency physician," says Janiak. "I don't see an increase at all."
In fact, the lack of litigation involving ED ultrasound is somewhat surprising, says Blaivas. "Radiologists get sued all of the time for missing things on ultrasound, CT, MRI, and X-rays," he says. "We are all fallible, and especially when proper training, protocol, or technique is absent, things will be missed."
There is actually a growing potential for lawsuits as a result of an ED physician not doing an ultrasound exam, says Blaivas. For example, some attorneys are seeking out patients who were injured during the placement of a central line.
"If ultrasound was not used, you have a lawsuit for negligence," says Blaivas. "Why? Because it is recommended by multiple societies and studies, and is known to reduce risk of injury when used in real time to place a central line. Thus, a physician will have to answer why they are behind the times." In fact, ED ultrasound may be approaching the standard of care, says Moore, referring to a recommendation by the Agency for Healthcare Research and Quality for real-time ultrasound guidance during central line insertion to prevent complications.1 "With that report in mind, if ultrasound is available in your ED and you don't use it while placing a central line, and then puncture a lung or lacerate an artery, it is conceivable that you could be held liable for that," says Moore.
The fact remains that ultrasound does have the potential to increase the risk of being sued with an adverse judgment if the physician makes a care decision based on a faulty read, or reads at a higher level than his competency, says Slovis. "That image can be used to find fault and a judgment against the physician," he says. "Telling a patient that it's gastritis when ultrasound reveals an AAA that [later] ruptures, carries more risk than if you referred that patient for imaging by a ultrasonographer based in radiography."
On the other hand, ultrasound also has great potential to pick up emergency conditions immediately, allowing patients to be operated on more accurately and faster. "If you're using the technology, you better know what you are doing. But certainly picking up an ectopic pregnancy, which are occasionally discharged, would decrease risk," says Slovis.
Similarly, attorneys may ask why the ED physician failed to discover a patient's AAA as soon as the patient came in, instead of hours later after the patient was admitted. "I actually think this is the next frontier of emergency ultrasound-related litigation," says Blaivas. "If it is part of training, recommended and practiced by so many, why did you not use it to save my client's husband/wife/daughter/son?"
For example, a lawsuit could be filed if an ultrasound exam was delayed or not given for a hypotensive patient with vaginal bleeding. "Even if the quantitative BHCG is low or you are still waiting for one, that scan should occur immediately and will make a difference," he says. "I think we will see fewer 'missed this one' lawsuits than we have feared. And while these will occur, they will not be any more frequent than what our radiology colleagues suffer per 1000 patients seen."
ED physicians are generally cautious about ultrasound, and leaders in the field stress proper training, credentialing, and focused applications that do not stretch the capabilities of the clinician, adds Blaivas.
Blaivas points to one radiologist's declaration that he would hire himself out to anyone who is planning a suit against an emergency physician using ultrasound. "There will be a push by mean-spirited people like that, I am sure," he says. However, in most states it will have to be another emergency physician who gives an opinion if it was reasonable for something to be missed or an ultrasound not performed, he adds.
"If we do more things, we do increase our risks," acknowledges Janiak. "However, that is offset by getting the patient cared for faster and finding out some things that are extremely urgent and getting the correct specialist in to take care of the problem."
In some cases physicians have been sued for missed diagnoses that they might have caught if they had used ultrasound, says Moore. He points to a lawsuit involving a patient who died because nobody knew the patient had a pericardial effusion. "This was before we had ultrasound in the ED. It's hard to get an echo [echocardiogram] in the middle of the night. My feeling is that if they had ultrasound they would not have missed it," he says.
On one occasion, ED physicians at Piedmont Fayette Hospital in Fayetteville, GA used ultrasound to determine that a patient's abdomen was filled with blood. "Fortunately the OB respected my interpretation and came in immediately. This might have saved the patient's life because she was in shock from an ectopic pregnancy," says Janiak. "Had we followed the normal procedure, I think that patient probably would have died in the ED."
1. Shojania KG, Duncan BW, McDonald KM, et al. Making Health Care Safer: A Critical Analysis of Patient Safety Practices. Evidence Report/Technology Assessment Number 43. AHRQ Publication 01-E058. Rockville, MD: Agency for Healthcare Quality and Research. July 2001.