If a Consultant Doesn't Show, What Can You Prove in Court?

Documentation could save the day

Michael Blaivas, MD, RDMS, professor of emergency medicine in the Department of Emergency Medicine at Northside Hospital Forsyth in Cumming, GA, says he has reviewed multiple cases involving consultants refusing to come to the ED, with a bad outcome resulting. "Mostly, this means an unhappy patient, but in critically ill ones can mean a lawsuit," he says.

Recently, Blaivas consulted on a case where a patient needed a general surgeon, but he was busy at another hospital and never came in. "No transfer was made to another facility. The patient exsanguinated four hours later. The EP [emergency physician] is being sued."

If you end up in this unfortunate situation, Blaivas says being able to prove you did all you possibly could will make the case more defensible. "Even though people do not like documenting unpleasant things or difficulties in managing patients, it is critical to document," he says. "Showing how many times you paged the consultant will show that you were not just letting the patient die there."

That message is what the jury will hear from the plaintiff, warns Blaivas. Ideally, he says, the EP will have a dictation showing multiple calls, multiple consultants, the thought process, and communication with the family and patient.

"That goes a long way to dispel that horrible image created by the plaintiff's attorney of a patient just rotting in this horrible ED room, with no one caring that she or he is expiring in front of them," says Blaivas.

Don't Hesitate to Call

Blaivas says not to be afraid to make the decision that a consultant has had enough time and you need to call someone else or transfer the patient. "Getting hospital administration involved and subtly documenting this will also help," he says. "It may expedite consultant actions, bring on a faster response, and also get the hospital on your side, if possible."

Remember that you can be held liable for failing to request consultations when they are appropriate, warns 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, as "this could be considered substandard care."

"If a particular consultant is difficult to deal with, and perhaps doesn't want to be bothered in the middle of the night, an appropriate consult may not be called just because the ED physician doesn't want to hear a barrage of complaints," says Gradick.

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, recommends taking the time to document completely the urgent consultation process, including the following:

• The time the consultant is paged;

• The time of the second page, if the consultant does not respond in a timely manner;

• Steps taken by the emergency physician if the consultant did not respond to pages, including notifying the administrator on call or a back-up consultant, or transferring the patient to another facility;

• The time when the phone consultation actually occurred;

• The exact nature of the consultant's response or recommendation;

• If applicable, the estimated time of arrival of consultant to the ED; and

• The actual time of arrival of the consultant.

Document carefully, as opposed to angrily, adds Blaivas. "Just think of how you would explain yourself later to a friend, and foe, especially a critical attorney or the consultant," he says. "Be polite in your wording, if dictating, but also do not hang yourself and make your case ahead of time."

He Said/She Said

Michael M. Wilson, MD, JD, principal malpractice attorney at Michael M. Wilson & Associates in Washington, DC, says that when an ED patient needs care emergently from a subspecialist, there will be times when the ED physician attempts to contact the specialist and the specialist doesn't return the calls, or he or she refuses to come in to the hospital, or the consultant agrees to come in and then doesn't show.

"In the meanwhile, the patient is still under the care of the ED physician," says Wilson. "In many of these scenarios, the end result will be a bad outcome."

Typically, says Wilson, this results in a lawsuit against the ED, the EP, and the subspecialist who never showed up.  "Then it will be left to the ED physician and the consultant to duke it out," says Wilson.

The EP will claim he or she contacted the consultant and the consultant never showed up, says Wilson, while the consultant will testify that the EP never clearly explained the facts that would indicate that the patient needed emergent care.

Wilson says to take all possible measures to obtain the best possible care for the patient.  "If the outcome is favorable, there will not be a lawsuit even if the documentation is poor," he says.

On the other hand, if the patient outcome is terrible, a lawsuit will be forthcoming even if the EP's documentation is impeccable. 

Since it's inevitable that specialists will be sick, unavailable, or even refuse to come to the ED in the middle of the night, Wilson recommends having a second consultant available in each of the major specialties. 

"Have a plan to transfer the patient to another facility if the specialist is unavailable," says Wilson. "Try to have a hospital problem solver on call to contact in the event of such an unavailable consultant, and then call that person."

Wilson says to first develop a well-reasoned plan of action, then document that plan and the actions made pursuant to the plan. "If calls are made, state who made the call, who you talked to, what was said, and the time of the call," says Wilson. "Too often the note just says, 'Neurosurgery contacted.'"

This does not provide the critical information that will be required to defend you when the neurosurgeon doesn't show up, says Wilson.

"If you can demonstrate to the jury that you were doing what a well-intentioned and caring EP would do under the circumstances, then the jury might decide to hold the hospital and specialist responsible and absolve you from responsibility," says Wilson. "But good documentation can never make up for a bad outcome, particularly one that could have been prevented."

 Stick to the Facts

If a consultant refuses to come in, you'll need to go up the chain of command, says Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA, starting with the department chair and then the chief of staff if you don't get results.

If this doesn't work, he says you can contact other consultants who are not on call to come in, go to the on-call hospital administrator and ask him or her to guarantee reimbursement, or try to get the patient transferred to a higher level of care. "Any steps taken have to be meticulously documented, while at the same time you are trying to manage a critically ill patient," he says. "This is no easy task."

Document not only whom you talked to, but when you spoke to him or her and what the result of the conversation was, says Lawrence.

"This will lay out a road map to at least defend what you did," he says. "If it ever came to a trial and a jury saw a list of all the steps you took, it's unlikely, though not impossible, that they would find you liable for the patient's outcome. What you hope to do is extricate yourself as soon as possible. And that kind of documentation will get you there."

Be factual and not inflammatory, such as saying the doctor "declined" to come in instead of using the word "refused," says Lawrence. "Think about how this will appear in front of either a hospital disciplinary hearing, or in front of a courtroom, when you write it," he says.


For more information, contact:

• Debra J. Gradick, MD, FACEP, Medical Director, Emergency Department, Avista Adventist Hospital, Louisville, CO. Phone: (303) 673-1003. E-mail: debragradick@centura.org.

• Michael M. Wilson, MD, JD, Wilson & Associates, Washington, DC. Phone: (202) 223-4488. E-mail: wilson@wilsonlaw.com.