When both the emergency physician (EP) and consultant are jointly named in a malpractice suit, the case often turns on whether a certain piece of information was conveyed.
As an EP defendant in this scenario, “you may find yourself defending against two people — the patient, and the consultant that you called to help you,” says Brandon K. Stelly, corporate director of enterprise risk management legal division and internal counsel for the Lafayette, LA-based Schumacher Group.
A recent malpractice case involved a man who presented to an emergency department (ED) with a nosebleed; the EP stanched the bleeding, but was concerned because the patient had a heart rate of 118 and slight hypotension. The patient reported losing a significant amount of blood.
The on-call ear/nose/throat (ENT) specialist thought the patient should be discharged for follow-up the next day in his office. “He reluctantly agreed to admit the patient when the ED physician insisted that the ENT would have to come to the ED and discharge the patient himself if he would not agree to the admission,” says Jeanie Taylor, RN, BSN, MS, vice president of risk services for Emergency Physicians Insurance Company in Auburn, CA. The following day, the patient developed another nosebleed. “The patient coded before transport to the OR was arranged, and could not be resuscitated,” says Taylor. “Significant blood was found in the stomach at the post.”
A subsequent lawsuit named both the EP and the ENT. The ENT claimed that the EP did not inform him of the patient’s hypotension and tachycardia, and stated that he certainly would have come in immediately had he been told of the abnormal vital signs. The EP’s documentation indicated only that she had requested that the ENT admit the patient.
“The EP later stated that she did not document the specific details related to the controversy between her and the ENT, because she had been trained to avoid evidence of disagreements with other healthcare providers in the medical record,” says Taylor.
The EP was eventually dismissed from the lawsuit, notes Taylor, “but only after much personal angst, as well as time and money spent defending her care.” She cautions against putting inflammatory statements in the chart, such as “Dr. X flatly refused to see the patient in the ED. He only agreed to the admission because I absolutely refused to discharge the patient and threatened to notify the chief of staff.”
“However, providers must not shy away from documenting material facts, especially when there is disagreement,” says Taylor. She would have liked to have seen this documentation in the ED chart: “Dr. X was informed of the patient’s tachycardia, slight hypotension, and the patient’s reported loss of a significant amount of blood. Lab results also discussed. Dr. X said the patient did not need to be seen this evening. He agreed to admit the patient for observation, and that he would see the patient in the morning.”
“The note is factual,” says Taylor. “But it clearly documents that the ENT was told of the patient’s condition when he made the decision not to see the patient until the following day.”
Another malpractice case involved a patient with a suspected bowel obstruction; the EP consulted with a surgeon on the case. “One of the alleged deficiencies in care was that antibiotics were not ordered,” Stelly says. The EP didn’t order antibiotics because the bowel obstruction was not yet confirmed. The consultant claimed that he would have done so immediately upon the patient’s admission, but assumed the EP had already ordered antibiotics, as the EP had not indicated otherwise. There was nothing in the ED chart to contradict this.
The plaintiff attorney alleged that the delayed antibiotics resulted in the patient’s surgery being delayed as providers waited to see if the patient’s condition improved or worsened; in the interim, the patient became septic and died.
Stelly would have liked to see this documentation in the ED chart: “Decided to hold off on antibiotics; discussed with surgeon. Surgeon agrees that antibiotics can be withheld at this time.” Even if the EP had documented only “plan discussed with surgeon,” this would have allowed the EP a better opportunity to argue that the discussion included the fact that antibiotics weren’t ordered in the ED, says Stelly.
Good charting takes the recollection of both the EP and consultant out of the equation. “It minimizes the ability of either provider to say, ‘That wasn’t told to me, and I never would have agreed with that plan of care,’” says Stelly.
Vital Signs Are Often Key
ED charts are often unclear as to whether consultants were informed about the severity of the patient’s symptoms, says Karen Reynolds, RN, senior vice president of patient services at Schumacher Group. This gives the consultant wide berth to claim he or she was never told.
“That is usually what the consultant says: ‘If I was told the patient had tachycardia, or that the oxygen saturation was that low, I would have done something differently,’” she says. Reynolds recommends that EPs use a standardized process when communicating with consultants, so that certain pieces of information are covered in every consult. “There could be prompts for four things that should be documented on the chart or EMR: ‘Completed and pending lab results discussed, vital signs and reassessment reviewed, pertinent findings and differential diagnosis discussed, and proposed plan agreed upon,’” she says.
This makes it difficult for a consultant to later argue that a certain piece of important information was omitted. With a standardized process, says Reynolds, “the emergency physician is painting a picture of the current condition of the patient for the receiving provider, rather than just conveying random thoughts.” Here are some important things for EPs to include in the chart after a consultation with a specialist:
- “Vital signs and test results reviewed and discussed.”
This is the primary thing Stelly wants to see EPs document after consults. “That makes it a lot harder for the specialist to say that it was never discussed,” he explains. “When I do see these claims [naming an EP and a consultant], nine times out of ten it’s about a vital sign.”
Taylor says the ED chart should clearly state that all relevant information was reviewed with the consultant. This includes abnormal diagnostic tests, significant medical history, abnormal vital signs, changes in the patient’s condition while in the ED, and incidental findings on diagnostic tests. “The best answer for an admitting physician who questions whether a key piece of information was shared is documentation of the facts in the ED record,” she says.
• What test results are pending.
If this isn’t noted, it later appears the consultant was unaware. “Sometimes they are pending because the emergency physician was doing the right thing in getting the consultant on board as quickly as possible,” Stelly notes.
- The consultant’s plan.
“We’re not talking about every order,” says Stelly. The chart should specify, for instance, “Dr. Smith to come to ED to see patient,” “patient to be admitted,” “Dr. Smith to see patient on the floor,” or “Dr. Smith advises that patient can be seen in the office on Monday after discharge.”
Receiving physicians may focus on one piece of information they deem most important, and fail to hear other vital information, warns Taylor. For example, a consulting physician who has seen many patients with similar symptoms managed successfully through outpatient care may be reluctant to admit a patient, even if the ED provider strongly advises admission.
“Clearly communicate what you think patients need,” says Taylor. “If you believe they cannot wait until morning to be seen, be clear about it — and document it.”
Such documentation leaves little room for doubt as to what was communicated. This prevents finger-pointing in the event an EP and consultant are both sued. “Once codefendant doctors start pointing the finger sideways at one another, the case becomes much more difficult to defend.” Stelly says. “No matter who is right and who is wrong, it shows a jury that the system broke down somewhere.”
- Karen Reynolds, RN, Senior Vice President, Patient Services, Schumacher Group, Lafayette, LA. Phone: (337) 354-1126. Fax: (337) 262-7282. E-mail: firstname.lastname@example.org.
- Brandon K. Stelly, Corporate Director of Enterprise Risk Management Legal Division & Internal Counsel, Schumacher Group, Lafayette, LA. Phone: (337) 354-1129. E-mail: email@example.com.
- Jeanie Taylor, RN, BSN, MS, Vice President, Risk Services, Emergency Physicians Insurance Company, Auburn, CA. Phone: (530) 401-8103. Fax: (916) 772-7072. E-mail: firstname.lastname@example.org.