Lack of documentation on patients with high-risk-conditions often results in the settlement of otherwise defensible claims against emergency physicians (EPs), according to Douglas Segan, MD, JD, FACEP, a medical-legal consultant based in Woodmere, NY.
“If you do emergency medicine long enough, you will see a patient at the beginning of your shift with a subtle complaint, who comes back at the end of your shift in cardiac arrest,” says Segan.
EPs need to have consistent documentation that does not leave “loose ends,” says Ken Warner, claims manager at MagMutual Insurance Company in Atlanta. EPs want to create as accurate and complete a picture as they can of the patient’s history and complaints, the examination, the assessment and the plan for the patient, including orders and discharge instructions. “Developing different documentation practices for different types of cases creates more opportunities for things to fall through the cracks,” he says.
Warner has seen missing documentation on communications with admitting physicians, consultants, and other departments cause problems for EPs during malpractice litigation.
“Do not depend on the other party to recall or document the same information you do when it’s time to testify in a lawsuit,” says Warner. He gives this scenario: The EP calls a neurologist to admit a patient with symptoms consistent with stroke, but the neurologist doesn’t see the patient until the following morning. By then, any opportunity for early intervention is lost; the patient suffers significant damage due to stroke complications.
“If this becomes a lawsuit where the neurologist is a codefendant, your defense may depend on what you told him and how well you documented that call,” says Warner.
Segan offers these suggestions for EPs to protect their patients — and themselves legally — when caring for patients who might have an evolving high-risk condition:
• EPs should recognize that even a minor symptom can be the harbinger of something serious.
When a patient says he “just” has heartburn, EPs have to recognize that this could be an early symptom of myocardial infarction (MI), for example. “There is no minor symptom that cannot be the early presentation of a lethal disease,” says Segan.
• Before discharging the patient, EPs should step back and ask, “If this is an early presentation of a potentially fatal illness, how is this chart going to look?”
“Every one of these cases is judged with the benefit of hindsight,” says Segan. “You want the chart to show that you were reasonable and thorough, and that you considered potentially life-threatening problems.”
A patient who comes to the ED complaining of “just an upset stomach” with a benign exam and workup could be diagnosed with appendicitis two days later. A defensible chart will show that the possibility of early appendicitis was considered at the time of the first ED visit.
“If you want to make the plaintiff attorney’s job more difficult, show that you considered serious diagnoses — and that you logically and reasonably believed they were very unlikely,” says Segan.
• The workup and medical decision-making should reflect that the EP considered the possibility of serious diagnoses.
It is important for the EP to document that he or she discussed with the patient and family that serious diseases may have an initially benign presentation.
“For a second, put yourself in the patient’s shoes. Address the serious things they are worried about, head-on, even if they don’t initially articulate those worries,” advises Segan. Ask, for instance, “Is there anything you are worried about that we didn’t discuss?”
Explain that certain conditions are difficult to diagnose early on, that the patient needs to return to the ED if symptoms worsen, and what symptoms to watch for.
“Every patient you discharge has to understand that the ED door is open for them to return if their symptoms worsen,” Segan says. “For most patients, the mere fact that they are in the ED means that they think something serious is going on.”
Show Serious Diagnoses Were Considered
Segan often reviews medical records that suggest the EP probably did the right thing, but the chart doesn’t indicate their medical decision-making. “It’s much more difficult for a plaintiff attorney to pursue a case when the emergency physician, methodically and reasonably, lays out what they were thinking and why,” he says.
For example, EPs should give some of the reasons why they don’t believe a chest pain patient has a life-threatening problem such as an MI, pulmonary embolism, or aortic dissection. “Because of time pressure or other factors, it’s a lot easier to check boxes in the record than to write or dictate your reasoning,” says Segan.
If the EP documents his or her decision-making, and the patient deteriorates after the ED visit, the chart shows that the EP was thinking reasonably. “The most challenging cases to defend are where the patient has red flag symptoms and it doesn’t appear that serious entities were even considered,” says Segan.
In such claims, it appears that the EP missed a disease entity with symptoms that would cause an average juror to say to themselves, “Even I would have considered this diagnosis.”
Jurors expect that MI will be considered in a patient with chest pain, for instance, and that appendicitis will be considered in a patient with abdominal pain.
“If you see enough patients, you are going to occasionally miss a patient with an atypical MI, a radiologically subtle fracture, or a patient with very early appendicitis,” says Segan.
A chart that shows the EP acted reasonably won’t immunize the EP from getting sued in these cases. “But the settlement will be a lot less, and the plaintiff attorney’s job will be a lot tougher,” says Segan.
• Douglas Segan, MD, JD, FACEP, Woodmere, NY. E-mail: email@example.com.
• Ken Warner, Claims Manager, MagMutual Insurance Company, Atlanta, GA. Phone: (404) 842-5671. Fax: (404) 842-3428. E-mail: KWarner@magmutual.com.