Patient ‘Bounced Back’ to Your ED? It’s an Opportunity to Stop Bad Outcome, Lawsuit
September 1, 2015
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A dismissive attitude could cause an EP to miss a life-threatening condition in a patient who returns to the ED, warns Michael B. Weinstock, MD, adjunct professor of emergency medicine at The Ohio State University College of Medicine and ED chairman at Mount Carmel St. Ann’s Hospital in Westerville, OH. Weinstock is author of Bouncebacks! Medical and Legal (Anadem, 2011).
Bounce backs are a second chance for EPs to “get it right,” Weinstock says. “Don’t say, ‘This patient is annoying because they are back again.’ Instead, thank the patient for coming back to your ER.”
Return visits to the ED are twice as common as was previously reported, according to a recent study.1 Nearly one in 12 patients who visited an ED in six states returned to an acute care setting within three days. The revisit rate rose to nearly one in five patients 30 days after the first ED visit.
“It is hard to be correct all the time without doing tons of overtesting,” Weinstock says. “The fact is we want to try to localize patients who might bounce back with a life-threatening or life-ending illness.” He gives these two examples:
- Patients with unexplained vital sign abnormalities. “If a patient’s heart rate is 120 and you don’t have a good explanation, like dehydration or pain, you need to localize that patient as a bad outcome soon to occur,” Weinstock says.
- Patients with symptoms that could be a potentially life-threatening condition, such as shortness of breath, headache, fever, or chest pain, combined with diagnostic uncertainty. To reduce risks, Weinstock recommends EPs:
- Write a medical decision note about why certain high-risk conditions aren’t suspected. This not only protects the EP legally if the patient ends up having the condition — in some cases, it could change the EP’s treatment plan. “It might make you think, if I can’t even convince myself that nothing bad is going on, there is no way I can convince a jury,” Weinstock says.
- Recruit the patient and family to watch for specific concerning signs that would warrant a return ED visit. “Inform the patient of diagnostic uncertainty,” Weinstock advises. “It’s important the patient knows you haven’t figured it out. Sometimes an accurate diagnosis can’t be determined in one visit.”
- Perform an independent assessment. In many “bounce back” cases reviewed by Weinstock, the EP relied on the diagnosis of a previous physician. “Maybe the diagnosis was appropriate based on the symptoms the patient had at that time; maybe not,” Weinstock warns. “You need to make your own diagnosis.”
In one case, a woman presented to an ED with a headache. She had been prescribed antibiotics for a sinus infection by her primary care provider. The EP prescribed stronger antibiotics, even though the patient’s symptoms weren’t consistent with sinus infection, while failing to diagnose pre-eclampsia. “The patient ended up with a horrible neurological outcome and was paraplegic,” Weinstock says.
Keith C. Volpi, JD, an attorney at Polsinelli in Kansas City, MO, is currently defending an EP in a lawsuit involving a patient who returned to the ED. A pregnant woman presenting with abdominal pain and a history of multiple coagulation disorders was discharged home after a telephone obstetrical consult and instructions to return to the ED if symptoms worsened. “Approximately 36 hours later, the patient returned to the ED with a significantly expanded hematoma and a fetal demise,” Volpi says. “The patient’s allegations included that she should not have been discharged after her first ED visit.”
These factors helped the EP’s defense: testing and documentation to show the fetus was not in distress, an appropriate consult, and labs demonstrating there was no evidence of internal bleeding. However, the plaintiff alleged that the EP:
- failed to send the patient to labor and delivery for monitoring and observation, per hospital protocol;
- failed to communicate with the patient’s attending obstetrician;
- failed to perform a repeat abdominal ultrasound to determine whether the potential hematoma was expanding, particularly in light of the patient’s coagulation disorders.
“At the end of the day, the ED physician’s care and treatment is defensible,” Volpi says.
The medical evidence indicates the patient’s hematoma did not start expanding until after she was discharged home after her first trip to the ED. “But this is a case in which perception will be difficult to defend,” Volpi notes. The perception is that a woman nearing the end of a high-risk pregnancy presented to the ED and was sent home after no obstetrical care and with no explanation for her pain and symptoms. “In hindsight, the ED physician would have best served herself by insisting on labor and delivery observation and in-person OB and hematology consults,” Volpi explains.
There are certain populations of patients, including high-risk pregnancies, that EPs must be very careful treating without consultation, regardless of acuity, Volpi warns. “This is particularly true where there is not a clear explanation for the patient’s presenting symptoms,” he adds.
A bad outcome and return ED visit will predictably result in an unhappy patient, says Dan Groszkruger, JD, MPH, principal of Solana Beach, CA-based rskmgmt.inc. “The patient and his or her attorney will suspect that a missed diagnosis may have occurred during the initial visit,” he says.
However, Groszkruger says that whether or not a lawsuit occurs probably depends more on the quality of the EP’s documentation of the first visit. “Plaintiff’s attorneys tend to evaluate damages before looking at liability,” he explains. “The value of ‘delay’ damages varies.” If the second ED visit results in care and treatment that might have been provided during the initial visit, Groszkruger notes, damages mainly represent solely the value of the delay in providing necessary care. “This often consists of transient emotional distress, worry, and physical pain, which may not represent sufficient damages to justify filing a lawsuit,” Groszkruger says.
A delay might represent high-dollar damages, however, if it led to additional harm requiring expensive treatment or permanent injury. If the plaintiff’s expert indicates that signs and symptoms evident during the first ED visit were not definitive, the burden of proof to establish medical malpractice may appear to be quite formidable. “On the other hand, if the medical record demonstrates only a cursory examination, few tests, and no explanation of medical decision-making leading to discharge, then the liability threshold may be easier to cross,” Groszkruger explains.
A diseased appendix may produce few or minor symptoms at the time of the first ED visit, but symptoms might quickly exacerbate. “If signs and symptoms appear to be equivocal, the ED physician may choose to keep the patient in the ED for observation,” Groszkruger says.
An appendicitis patient risks rupture and complications if surgery is delayed; on the other hand, if signs and symptoms are not dispositive for appendicitis, many less serious conditions could account for the patient’s complaints. “It’s a balancing act decision for the ED physician, making the quality of documentation of medical decision-making all-important,” Groszkruger notes.
He gives a “worst-case” scenario of a patient with equivocal signs and symptoms who is discharged home, but returns in a matter of hours. “If surgery finds a burst appendix, everyone is likely to suspect a missed diagnosis occurred on the initial visit,” Groszkruger says.
However, if the medical record thoroughly documents a comprehensive work-up, and the lack of definitive signs and symptoms, then the EP’s decision to discharge the patient home with follow-up instructions appears reasonable and understandable. “This illustrates the importance of the quality of documentation,” Groszkruger adds.
The most common allegations Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago, sees in his practice are claims the patient was “dumped” by another ED and simply discharged without treatment. “In one of our cases, a patient who was admitted, but recently discharged, returned with complaints of a severe headache and nausea,” Kreisman says.
The patient had been diagnosed with a treatable benign brain tumor. “The error on return ED visit was not to rule out the brain herniation that was underway,” Kreisman explains. Instead, the EP administered pain medication and discharged the patient home.
“A serious error was made in not fully understanding the condition of the patient from the earlier admission,” Kreisman notes. “This was coupled with the error in judgment made by the treating neurologist who agreed by phone with the EP to discharge this patient.” If a patient returns presenting with the same symptoms as before, the EP should be certain to review the chart from the previous visit, Kreisman advises, and then be sure that the most dangerous and deadly possible illnesses or injuries are ruled out first. “In all of these cases, the best defense is the well-documented chart,” Kreisman recommends. “Bad outcomes are not viable lawsuits in most fact scenarios.”
Kreisman handled an ED case involving a patient who presented with signs and symptoms of an infectious process. “However, the recorded vitals made a claim against the ED physicians untenable,” he says. “There were no objective findings of infection.” The doctors and nurses carefully recorded the patient’s vital signs, which did not show the patient was becoming septic. “The only negligence in that case was alleged to have occurred later on in the admission, when the patient was misdiagnosed by an infectious disease physician,” Kreisman says.
REFERENCE
- Duseja R, et al. Revisit rates and associated costs after an emergency department encounter: A multistate analysis. Ann Intern Med 2015;162:750-756.
SOURCES
- Dan Groszkruger, JD, MPH, Principal, rskmgmt.inc., Solana Beach, CA. E-mail: [email protected].
- Robert D. Kreisman, JD, Kreisman Law Offices, Chicago, IL. Phone: (312) 346-0045. Fax: (866) 618-4198. E-mail: [email protected].
- Keith C. Volpi, JD, Polsinelli, Kansas City, MO. Phone: (816) 395-0663. Fax: (816) 817-0210. E-mail: [email protected].
- Michael B. Weinstock, MD, Adjunct Professor, Department of Emergency Medicine, The Ohio State University College of Medicine, Columbus. Phone: (614) 507-6111. E-mail: [email protected].
A dismissive attitude could cause an EP to miss a life-threatening condition in a patient who returns to the ED.
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