Was Specialist Involved in Your Patient's Care?

Protect Yourself Legally

Did a surgeon examine your abdominal pain patient, or did a gastroenterologist give a second opinion on a complex issue? Unless this is documented appropriately, the ED physician may be the only one left "on the hook" if a bad outcome occurs.

"Even with proper documentation and appropriate consultation, the emergency physician may be dragged into the widely cast medical malpractice net in the event of an untoward clinical outcome," says Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and co-director of University Hospitals Geauga Medical Center's Chest Pain Center in Chardon, OH. "A meticulously well-documented medical record is often the emergency physician's best, and only, hope for a favorable judgment."

You are Responsible

Emory Petrack, MD, FAAP, FACEP, a medical-legal consultant and principle of Shaker Heights, OH-based Petrack Consulting, says that unless it is clear and clearly documented that a specialist is actually assuming all care for an ED patient, the ED attending clearly remains responsible and liable for care.

"Consultants are just that—consultants!" says Petrack. "If an orthopedist comes in to reduce a bad fracture, or a plastic surgeon to take care of a pediatric facial laceration, the overall care of the patient remains the responsibility of the ED staff."

It is important to document clearly who is doing what, along with the times that any consultants are called and provide service.

"The best way to think about documentation is to assume that there will be a medical legal action two years later, and you won't remember anything," says Petrack. "If a chart is documented with this orientation in mind, the documentation will be clear. It is also worth noting that this is truly better patient care, since the patient may return when that provider is not on duty. Good documentation really does help everyone do the right thing."

In Person or Phone?

If a consultant gives a recommendation over the phone without seeing the patient, it could be argued that he or she hasn't legally established a patient-physician relationship, says Debra J. Gradick, MD, FACEP, medical director of the ED at Avista Adventist Hospital in Louisville, CO, and vice president of operations at Serio Physician Management in Littleton, CO.

However, if the consultant actually comes to the ED to examine the patient, this should be made clear in the record. Gradick suggests charting, "Dr. Smith of cardiology responded to the ED and evaluated the patient while he or she was in the ED. Refer to his consultation for full details."

"If the consultant recommends a specific treatment and you don't document that, you are leaving out part of the record," says Gradick.

Chad Kessler, MD, FACEP, FAAEM, section chief of emergency medicine at Jesse Brown VA Hospital and associate program director for the combined internal medicine/emergency medicine residency at the University of Illinois in Chicago, says that one of the most legally dangerous situations is when the ED physicians takes orders or recommendations, but there is nothing about this documented in the chart either by the ED physician or the consultant. 

"Both parties should write detailed notes, and likely use a standardized template to complete this interaction," advises Kessler. "ED physicians or the ED staff should always keep a detailed log of calls to specialty consultants. Document the name, the time of the call, and the plan."

Gradick says that telephone consults present more legal risks for ED physicians, because the consulting physician hasn't seen and examined the patient. "If you have someone you feel is sick enough that he or she needs to be seen emergently, it is incumbent on the ED physician to insist that the consultant physically see the patient," she says.

Danger of Phone Consults

Sullivan notes that if consultants come to the ED and evaluate patients personally, the consultants will perform independent history and physical examinations and come to their own conclusions about diagnosis and treatment options.

"The danger in interactions with specialists arises during telephone consultations in which one party must rely upon the other party's description of the patient's history and physical findings, or on a description of the interpretation of test results," says Sullivan.

If an ED physician fails to properly describe a patient's physical findings or misinterprets a test, the specialist may develop a false sense of security regarding the patient's condition, he says.

Similarly, if a consultant misunderstands an ED physician's description of a patient's condition, the severity of a patient's illness may also be underestimated. "On the other hand, a specialist may call the emergency physician with an interpretation of a test result, but then may change his or her mind after further review of the test," says Sullivan. "In either case, a bad outcome could prove costly."

For example, an ED physician may contact an orthopedist for an open fracture dislocation of a patient's ankle which the ED physician reduced and splinted. If the orthopedist did not understand that the fracture was open, he might underestimate the severity of the injury and recommend discharge with outpatient follow up.

If the ED physician followed the orthopedist's recommendations in this scenario, and the patient later developed osteomyelitis, Sullivan says the issue in a medical malpractice case would involve whether or not the ED physician properly described the patient's injury.

"A common problem in obtaining verbal reports from radiologists is that preliminary reports may be different than the final reports," adds Sullivan. If an ED physician bases a treatment on a verbal preliminary report such as a normal wrist X-ray, a final report showing a subtle fracture may make it appear as if the ED physician provided substandard treatment to the patient.

Sullivan recommends taking these steps to minimize misunderstandings:

  • If a patient has a condition that is likely to result in a bad outcome, have the consultant personally evaluate the patient in the ED and write a short note describing the consultant's recommendations.
  • If a consultant does not believe that a personal evaluation in the ED is necessary, document what was discussed with the consultant and the consultant's specific recommendations.
  • If the consultant believes that a patient with an open fracture, for example, can be managed as an outpatient, describe the fracture in detail and document both the description and the consultant's response in quotation marks, advises Sullivan.

"This may not prevent a lawsuit, but it will certainly go a long way toward resolving discrepancies about what information was relayed during the conversation," says Sullivan.

For example, a note in the chart might state, "Consultant is aware that fracture is open and states that 'open fractures without gross contamination are able to be managed as an outpatient.'"

"This chart entry shows both that the consultant knew the fracture was open, and shows the reasoning behind the consultant's decision," says Sullivan.

When relying on a consultant's interpretation of a test, get everything in writing. "Do not settle for verbal reports, especially in critically ill patients," says Sullivan.


For more information, contact:

* Emory Petrack, MD, FAAP, FACEP, Petrack Consulting, Inc., Phone: (216) 371-8755. Fax: (216) 928-9400. E-mail: epetrack@petrackconsulting.com

* Chad Kessler, MD, FACEP, FAAEM, Section Chief, Emergency Medicine, Jesse Brown VA Hospital, Chicago. Phone: (312) 569-6508. E-mail: Chad.Kessler@va.gov.