Surprising New Data on Closed ED Claims: Incomplete Assessments Are Factor in Many Med/Mal Suits
“A common path to lawsuits” against emergency physicians
May 1, 2015
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Physician reviewers at The Doctor’s Company, a Napa, CA-based medical malpractice insurer, recently analyzed 332 emergency medicine claims that closed from 2007 to 2013.1
“The motivation for the study was to identify risks to patients in emergency medicine,” says Darrell Ranum, JD, CPHRM, vice president of patient safety and risk management at The Doctor’s Company. “The value of data from a large number of physicians is to learn from their experiences.”
The hope is that as emergency physicians (EPs) review the findings of this study, they will scrutinize their own systems and processes. “They should determine whether the weaknesses identified in the study exist in their organization,” says Ranum.
Even though 39% of the claims were filed because of a patient’s death, only about one in five claims resulted in a judgment or settlement against an emergency medicine physician. Other injuries included infections, loss of mobility, the need for surgery, hemorrhages, cardiac or brain infarction, and cardiac or pulmonary arrest.
The most common allegation was failure, delay, or wrong diagnosis. “Because of this diagnostic focus, we were surprised at the number of cases (173) in which our physician reviewers identified an issue with patient assessments,” says Ranum. It appeared that incomplete assessments were conducted. “In some cases, the assessment may have been thorough, but that was difficult to determine because the documentation was not detailed,” notes Ranum.
Patients with viral flu-like symptoms had bacterial pneumonia and were not treated with antibiotics; no lab tests, oxygen saturation, or chest X-rays were performed. Other claims involved patients with shortness of breath and risk factors for pulmonary embolus (PE) who were not evaluated for PE, which was the cause of death. In other cases, EPs did not conduct studies that would have diagnosed myocardial infarction (MI) in patients with chest pain and related symptoms.
“Incomplete assessments are often the starting point for adverse patient outcomes and malpractice litigation yielding judgments against emergency physicians,” says Los Angeles health care litigator Damian D. Capozzola, JD. “There are many examples of this in recent years.”
In one such case, a child with bacterial meningitis was misdiagnosed with a simple ear infection. “She subsequently died as a result of the delay in proper treatment,” says Capozzola. Another malpractice claim involved a worker injured by mechanical equipment who was misdiagnosed with a knee sprain; he had actually torn ligaments, tendons, and an artery. “He had to undergo an above-the-knee amputation as a result of the delay in receiving proper care,” says Capozzola. “The risks of and potential damages from incomplete assessments in the emergency room cannot be overstated.”
Incomplete Physical Exams
Incomplete ED evaluations are “a common path to lawsuits, based on what I have seen over the years,” says Michael Blaivas, MD, FACEP, professor of emergency medicine at University of South Carolina Medical School and an ED physician at St. Francis Hospital in Columbus, GA. “Obviously, there is a truly incomplete assessment and an allegation of an incomplete assessment, with the two not always overlapping.”
In Blaivas’ experience, the most common example is an incomplete physical examination in the chart. “Every physician deposition I have ever read with an incomplete physical exam forced the EP to state that they either recalled doing that portion of the exam, or that they always do that portion of the exam,” says Blaivas. The EP then typically states that “it must have been normal, or otherwise I would have recorded the abnormal findings.”
“It sounds flimsy for a reason — it is,” says Blaivas. By this point in the deposition, the EP has often admitted that he or she does not recall the patient or the case.
“The other common problem is incomplete evaluation for a specific problem, such as abdominal pain or chest pain,” says Blaivas. He gives the example of abdominal pain, with the EP ordering a kidneys/ureters/bladder (KUB) X-ray, and assuming that since it did not show any obvious pathology that they are cleared of missing anything in the ED. “Unfortunately, many EPs forget their stats for KUB specificity and sensitivities, as well as for other cases such as chest X-ray for signs of aortic dissection,” says Blaivas.
Blaivas has reviewed claims in which EPs stated in the record, and sometimes in deposition, that they ruled out a small bowel obstruction, incarcerated hernia/other abdominal pathology, or a dissection, with the KUB or chest X-ray. “However, it is well-established that while either may show helpful signs of the process being ruled out, neither is sensitive enough to rule out an intra-abdominal process or dissection, respectively,” says Blaivas.
Dan Groszkruger, JD, MPH, principal of Solana Beach, CA-based rskmgmt.inc., says he frequently sees these factors result in claims against EPs, involving incomplete assessments:
- inability of the ED to properly evaluate and treat a patient’s pre-existing, chronic conditions which may be unrelated, or only tangentially related, to the reason for the ED visit;
- past evidence of adverse drug reactions recorded in the patient’s electronic medical record, but not readily available to the EP who is ordering drugs to address a patient’s pain symptoms. “These factors challenge even the best ED physicians working in the most sophisticated and capable EDs, in terms of ensuring patient safety and minimizing liability,” Groszkruger says.
Here are the most common patient allegations made in the 332 claims reviewed by The Doctor’s Company:
1. Misdiagnosis (57% of claims).
The most commonly misdiagnosed conditions were acute cerebral vascular accident, MI, spinal epidural abscess, pulmonary embolism, necrotizing fasciitis, meningitis, torsion of the testis, subarachnoid hemorrhage, septicemia, lung cancer, fractures, and appendicitis.
“Most of these diagnoses are the types of acute conditions that require emergency care. However, some are unusual and can be difficult to diagnose,” says Ranum. For example, spinal epidural abscess and necrotizing fasciitis have been seen infrequently in the past, and present with symptoms that can be attributed to a variety of conditions.
Ranum says the following factors identified by physician reviewers contributed to misdiagnoses: failure to establish a differential diagnosis; failure to order diagnostic tests appropriate for the symptoms; and premature discharge from the ED before a comprehensive evaluation was conducted, tests were completed, or vital signs were checked.
“There was lack of communication among the physicians who were caring for patients,” says Ranum. In some cases, there was inadequate documentation of assessments to provide important information to subsequent treating physicians, or incomplete information provided during handoffs.
2. Improper management of treatment (13% of claims).
Claims included failure to stabilize a patient’s neck following an accident, resulting in paraplegia, and failure to explore a wound that was infected or contained foreign bodies.
3. Improper performance of a treatment or procedure (5% of claims), including intubation of the respiratory tract, suturing, X-rays or imaging procedures, and insertion of an intravenous or central line for medications.
4. Failure to order medication (3% of claims), such as antibiotics for suspected pneumonia patients or tissue plasminogen activator in suspected MI or stroke patients.
The physician reviewers also looked at the most common factors that contributed to patient injury. Here are the top six that were identified:
1. Patient assessment issues (52% of claims).
EPs sometimes failed to establish a differential diagnosis, or to use clinical information that was available to them that should have prompted further investigation. As a result, abnormal findings went unaddressed and appropriate diagnostic tests weren’t ordered.
2. Patient factors (21% of claims).
In some cases, care of obese patients was delayed due to a lack of adequate equipment, such as open MRIs. In claims involving obese patients, says Ranum, “most allegations were related to problems with diagnosis.” EPs had difficulty palpating the abdomen, clearly distinguishing body parts in X-rays, and diagnosing complications of surgery. Allegations also included ordering a medication dose that was inappropriate for the patient’s weight, and improper performance of procedures such as spinal taps due to difficulty finding anatomic landmarks and gauging proper depth for insertion of needles.
Patient nonadherence with treatment plans or follow-up appointments also contributed to bad outcomes. “If patients suffer a bad outcome as a consequence of their own actions or inactions, this information is relevant when determining whether the physicians’ care caused an adverse patient outcome,” notes Ranum.
This type of information normally is not documented by emergency physicians. “Information regarding patient lack of compliance came from the patients’ inability to provide evidence that they followed discharge instructions,” says Ranum. For example, if they were instructed to see their personal physician, purchase antibiotics, or come back to the ED if their symptoms increased and they did not do these things, patients would not have documentation to show compliance.
3. Communication among providers — failure to communicate, failure to review the medical record, and poor professional rapport (17% of claims).
During handoffs and in the medical record, “ER physicians sometimes failed to communicate important information discovered during a patients’ assessment, such as history of drug use or suicide attempts,” says Ranum. Radiologists failed to communicate important findings such as fractures, resulting in patients being discharged without receiving proper treatment; nurses did not notify EPs of changes in patients’ vital signs before discharge.
“When ER physicians ordered chest X-rays for suspected pneumonia and the radiologist identified an incidental finding such as a possible lung tumor, this was not communicated to the patient’s primary care physician for follow-up,” says Ranum.
Delays in transfer to another facility were not communicated by the receiving hospital. “This delayed the start of antibiotics at the transferring hospital,” says Ranum.
4. Communication between patient/family and providers (14% of claims).
Problems with inadequate follow-up instructions and language barriers were identified.
5. Insufficient or lack of documentation (13% of claims).
Important information about clinical findings, follow-up efforts, the patient’s history, and phone advice to the patient wasn’t conveyed to other providers in the medical record.
6. Workflow and workload (12% of claims).
When the incident leading to a claim occurred on a weekend, at night, or over a holiday, fewer staff or services were available. Another factor was the level of activity and chaos in the ED, highlighting the fact that the ED’s working environment can affect patient care. “During depositions of emergency medicine physicians and nurses, they sometimes referred to conditions that existed at the time that the patient suffered harm,” notes Ranum.
REFERENCE
- The Doctor’s Company. Emergency Medicine Closed Claims Study. April 2015, Napa, CA.
SOURCES
- Michael Blaivas, MD, FACEP. E-mail: [email protected].
- Damian D. Capozzola, JD, The Law Offices of Damian D. Capozzola, Los Angeles, CA. Phone (213) 533 4112. Fax (213) 996 8304. E-mail [email protected].
- Dan Groszkruger, JD, MPH, Principal, rskmgmt.inc., Solana Beach, CA. E-mail: [email protected].
Physician reviewers at The Doctor’s Company, a Napa, CA-based medical malpractice insurer, recently analyzed 332 emergency medicine claims that closed from 2007 to 2013.
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