Even Informal Consults on ED Patients Could Come Up in Suits

Document your reasoning

The "second-look EKG" is a good risk-management strategy, according to Robert Broida, MD, FACEP, chief operating officer of Physicians Specialty Limited Risk Retention Group in Canton, OH. If you are the treating physician for any patient with chest pain being considered for discharge, it is a good practice to have another physician review and initial the EKG before discharge, he advises.

"Not only will this help prevent EKG misreads, but it also provides the opportunity to discuss the case with a colleague," he says.

Would this consultative approach increase the liability of the second physician, however? Broida acknowledges that it would, but adds that, "The 'two heads are better than one' approach decreases the total liability risk and promotes better patient outcomes."

If you have an unusual or puzzling case, it is good medicine to consult with another EP about the case, or to consult with other specialists such as a neurosurgeon, infectious disease specialist, neonatologist, or obstetrician, according to Michael M. Wilson, MD, JD, principal malpractice attorney at Michael M. Wilson & Associates in Washington, DC.

"An EP cannot know everything about every field of medicine, even though patients can walk in with problems that require the collaboration of specialists in several fields," he says. In fact, says Wilson, making the best possible decision in a collaborative manner "can demonstrate the best of medicine."

Robert B. Takla, MD, MBA, FACEP, chief of the Emergency Center at St. John Hospital and Medical Center in Detroit, MI, says he doesn't see any increased liability risks involving "curbside consults" with other EPs, and that, in fact, these can prevent potential lawsuits.

An informal consult can be potentially life-saving, says Takla, for an ED patient with an unusual presentation that a colleague has seen before. "An EP may have a heightened sense of awareness because they've been burnt on it in the past or know somebody who has," he explains.

Should You Document?

If you discuss your ED patient with a consultant, Wilson advises documenting the date and time of the consultation, who the consultant was, what the EP told the consultant, what the consultant told the EP, and the processing and follow-up of the consultant's recommendations.

"The consultation should always be documented, even if the EP rejects the consultant's recommendations," says Wilson.

If it's another EP Takla is consulting with, he doesn't include this information in the patient's chart. "I don't know of any specific cases where an EP has gotten into trouble because somebody intentionally dragged a colleague they consulted with into the situation by documenting his or her name in the chart," he adds.

The plaintiff's attorney is not likely to be aware of the "curbside consults" because they're not typically documented. "I don't ever write the names of EP colleagues that I run something by," says Takla. "The plaintiff's attorney would have a difficult time discovering this, and would almost never know that another EP was consulted."

If a specialist is nearby and Takla informally discusses a patient with him or her, however, he's more likely to document this because the specialist presumably has more expertise in a given area. "If the EP reviews the EKG with a practicing cardiologist, it's important to document that," says Takla. "That's very different from me walking over to my colleague and saying, 'What are your thoughts on this?'"

Advice Not Followed?

If an EP who is not involved in a case expresses an opinion to you, you have no legal obligation to follow it, says Frank Peacock, MD, vice chief of emergency medicine at The Cleveland (OH) Clinic Foundation. "ED doctors talk to each other all the time on shifts. They will say, 'Look at this rash for me,' or, 'Push on this guy's belly and see what you think.'"

Using an EP as a sounding board doesn't mean you have to follow his or her advice, "which might be flat out wrong," says Peacock.

However, if a consultant gives an opinion you disagree with, Peacock says you should document this because he or she is also documenting on the case. "A consultant usually knows a lot about their area of expertise, and not much about anything else," he adds.

If an ophthalmologist documents that the patient's eyeball looks fine but he thinks the patient's chest pain should be evaluated, says Peacock, don't let the statement stand unchallenged. Instead, document that, "The patient's pain is not consistent with anything that needs emergency evaluation," he says.

If the recommendations of a consultant are rejected, Wilson says that the reasons for this should be carefully documented. "Of course, if the consultant was correct, and the EP failed to follow the sound recommendations of the colleague or specialist, merely documenting the decision will not protect the EP from exposure to liability," says Wilson.

However, if the decision-making process is sound and well-documented, even a decision that ultimately turns out to be incorrect may be defensible, he adds.

If an EP or consultant provides advice that is not followed, the plaintiff's attorney will normally be able to provide the jury with information about the consultation and the failure to follow the recommendation, whether or not the consult is documented, says Wilson.

"Every careful plaintiff's attorney will ask the EP about any discussions or consultations with other physicians in treating the patient, and then will depose the consultants that seem to have given important advice," says Wilson.

However, Wilson emphasizes that the most important aspect is the soundness of the decision-making process. "The EP may have had good reason to reject the consultant's recommendations at the time, even if that decision later on turned out to be wrong," he says.

Documentation as to the reasons for the rejection of the recommendations is critical, underscores Wilson. "If the recommendation is not followed because the EP got busy with another patient and forgot about the recommendation, that lapse could make the failure to follow the recommendation extremely difficult to defend," he says.

In this case, he says, the EP will be deposed and asked, "Why did you not follow the recommendation of Dr. Jones to check the potassium level before discharging the patient on furosemide who has come in with an irregular heartbeat?"

The EP's deposition testimony, such as, "I had an emergency patient come in immediately afterwards, and in the process of saving that patient, I forgot about Dr. Smith's recommendation and discharged the patient because we needed the bed," will, of course, be admissible. "It may lead to an inability to successfully defend the case," says Wilson.

For more information, contact:

• Robert Broida, MD, FACEP, Chief Operating Officer, Physicians Specialty Limited, Risk Retention Group, Canton, OH. Phone: (330) 493-4443. E-mail: rbroida@emp.com.

• W. Frank Peacock, MD, The Cleveland Clinic Foundation, Department of Emergency Medicine, Cleveland, OH. Phone: (216) 445-4546. Fax: (216) 445-4552. E-mail: peacocw@ccf.org.

• Robert B. Takla, MD, MBA, FACEP, Chief, Emergency Center, St. John Hospital and Medical Center, Detroit, MI. Phone: (313) 343-7071. E-mail: rtakla@comcast.net.

• Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. Fax: (202) 280-1414. E-mail: wilson@wilsonlaw.com.