What Makes Successful Suit Against ED Mid-level?
There's a "common theme"
The number of lawsuits involving mid-level providers (MLPs) in the ED "seems to have skyrocketed in the last few years," according to Michael Blaivas, MD, FACEP, FAIUM, professor of emergency medicine at Northside Hospital Forsyth in Cumming, GA. "There are multiple scenarios that result in successful suits, and there is a common theme among them."
The common theme is lack of, or inadequate, supervision of the MLP, says Blaivas, and asking the MLP to do more than he or she is trained for.
Blaivas says that one of the most frequent problems is with failure of the MLP to recognize a critically ill patient, such as a patient presenting with signs of sepsis and vague complaints.
In this scenario, says Blaivas, going down the incorrect pathway results in missing the presence of septic shock and discharge or possibly admission to a floor where the patient deteriorates further and then expires.
"Many cases I have seen were very ill patients who were sent home," says Blaivas. "In almost every instance, the supervising physician never saw the patient. He or she just had a verbal presentation on them by the mid-level, and occasionally not even that."
Critical wounds and limb- or organ-threatening injuries or pathologies are also frequently missed, adds Blaivas. "Rare and atypical presentations that would be caught by an emergency physician if he or she saw the patient personally instead of relying on the mid-level evaluation and presentation are a frequent cause of misses, poor outcome and then litigation," he says.
Avoid High-risk Practices
"Not seeing the patients is obviously high risk," says Blaivas. There is a tendency for some MLPs to minimize a patient's symptoms, he adds, possibly because the provider wants to feel like he or she can completely care for the patient.
In some charts reviewed by Blaivas, the MLP gave a misleading impression of the patient's condition, adds Blaivas. "This may be personality-specific, and such mid-levels put groups at risk," he warns. "Mid-levels that do not present patients right away may need to be remediated."
A bigger problem, though, may be EPs who refuse to see the patients seen by an MLP in person, says Blaivas, as with a fast track staffed by MLPs. "These are often slightly separate from the ED, and may be staffed by mid-levels only," he says. "The concept is that anything seen there is minor, and if anything more serious comes in, it will be sent to the main ED."
However, such patients are generally not seen by the supervising physician and cases aren't reviewed with the MLP, says Blaivas, and the charts may not be signed off on until days later, or at best, at the end of the day when the patient has already left.
"In general, such physicians are sued just like their mid-levels and look bad in front of a jury for not having seen a patient," says Blaivas. "Remember, most people still expect to be treated by a physician."
Don't Assume You're Protected
In some cases, EPs who were named in a lawsuit and never saw the patient treated by the MLP have successfully received summary judgments, says Blaivas. "I have seen one such case, but this is no protection. Physicians should not strive to hide behind 'I never saw the patient, I have nothing to do with this,'" he says.
In fact, says Blaivas, EPs are legally responsible for bad outcomes involving care of an MLP, when the MLP is working under the supervising physician. "This is often fought and not understood by the physician being sued," says Blaivas.
Many EPs don't realize that in most states they are responsible if the MLP is working under them, says Blaivas, or in an area they are technically supervising during that period of time. "The nuances of this change from state to state, depending on established case law and rulings," says Blaivas. "It is worth finding out more about that where you work."
Here are Blaivas' recommendations to reduce risks:
EPs should avoid putting up barriers to MLPs asking questions and seeking consultation.
"This is very common, and results in mid-levels flying on their own and reluctant to communicate with the EP," says Blaivas. "Since it is all a numbers game and the mid-levels may be seeing less ill patients and, thus, are less likely to get sued, it is just a matter of time."
Ideally, EPs should see every patient seen by an MLP.
Blaivas acknowledges that this isn't always possible, adding that many EPs outright refuse to do this. "However, if the mid-level is working in your care team, or you are the only EP in the department at that time, you better know about every patient," says Blaivas. "The care patients receive will be better if you see each one yourself. The reality of what goes on will continue to be a struggle, and not an easy one."
Blaivas says that seeing all patients above a certain triage level and all patients being admitted is a good start. "You are still relying on the triage nurse to catch all moderately sick patients and above, and this is clearly not possible," he says. "However, at least this way you would catch the majority."
All patient encounters should be documented by the EP.
If the MLP sees a patient, the EP needs to make a note, adds Blaivas, and you never know what the MLP will write, dictate, or remember at deposition and trial.
Also, some juries do not like to see a physician who did not bother to write anything, says Blaivas. If the case is about carelessness, you may look more careless by not keeping a medical record of the encounter and decision making, he says.
"The real problem with convincing EPs to do this is for the standard strep pharyngitis," says Blaivas. "No one worries about documenting on one until they get served for a missed retropharyngeal abscess that leads to tragedy."
It is critical to have the MLP present every patient in your care team or area of responsibility.
This way, subtle problems can be picked up on, says Blaivas. "The mid-level can get used to running everything past the EP, without worry of sharp rebukes for bothering the physician in the middle of an interesting YouTube video," he says.
In six of the last seven cases Blaivas has seen involving MLPs, the EP never saw the patient. "In the seventh, their involvement was two hours into a tragic case, and too little, too late," he says. "There is no easy answer, other than doing our job and properly supervising those working under us."
For more information, contact:
Michael Blaivas, MD, FACEP, FAIUM, Professor of Emergency Medicine, Northside Hospital Forsyth, Cumming, GA. Phone: (706) 414-5496. E-mail: firstname.lastname@example.org.