A current malpractice case alleges that the EP failed to perform the work-up and testing necessary to rule out a bacterial infection in an infant.
“The infant went on to cardiac arrest and died,” says Judy Greenwood, JD, a Philadelphia-based medical malpractice attorney. She has represented plaintiffs in several other recent cases in which the ED chart contained no documentation showing that the EP considered the most serious conditions based on the patient’s presentation.
“We have seen cases where the ER personnel assumed the most common cause for the symptoms, and when testing was negative for the assumed condition, discharged the patient without ruling out other serious causes,” Greenwood says.
ED documentation should include not only the pertinent positives, but also the pertinent negatives, says Pamela S. Gilman, JD, a partner in the Boston office of Barton Gilman. Otherwise, plaintiff attorneys can convincingly allege that the EP never even considered the correct diagnosis.
Even the words “considered meningitis” for a patient with flulike symptoms can strengthen the EP’s defense, if the patient later turns out to have meningitis.
“You can at least use that as a springboard to explain why you rejected it and didn’t order a test,” says Jennifer K. Oetter, JD, a partner in the Portland, OR, office of Lewis Brisbois Bisgaard & Smith.
Plaintiff attorneys sometimes allege that if the EP had only ordered a certain diagnostic test, the patient would have been admitted and the bad outcome prevented. This is rarely the case, however, according to Oetter. If an abnormal ECG is worrisome enough to admit the patient, for instance, there are usually other symptoms apparent that would cause the EP to admit the patient.
“Usually the truthful testimony is, ‘It would have been one more data point to consider,’” Oetter says.
In one recent case, a patient presented to an ED with a history of left-sided weakness and other symptoms.
“The physician didn’t get a neurological consult because there appeared to be other explanations for the patient’s symptoms and no evidence of an active event,” Oetter says.
As it turned out, the patient had likely had a stroke in the weeks prior to admission, and suffered another stroke shortly after discharge from the ED.
Another malpractice case alleging missed meningococcemia involved a patient discharged from an ED with a diagnosis of viral illness. The plaintiff attorney alleged that the EP should have obtained a blood culture.
“The patient did not meet the SIRS [Severe Inflammatory Response Syndrome] criteria, and there was another, more common explanation for the signs and symptoms associated with infection,” Oetter explains.
A current malpractice case involves a patient who presented with a headache and later died of an aneurysm. The plaintiff attorney alleged that the EP should have ordered a CT or MRI. The EP’s documentation, which included his thought process, helped the defense since it showed there was no reason to suspect an aneurysm.
“Although imaging studies would have shown the aneurysm, they weren’t indicated,” Gilman says. The standard of care requires EPs to use reasonable clinical judgment as to the appropriate tests to order based on the patient’s presentation at the time of the ED visit.
“We do have the occasional case where somebody goes to the ED with chest pain, a heart attack is ruled out, and the next day they die,” Gilman says. Even cases with this fact pattern are defensible, if the EP had no reason to suspect a heart problem at the time of the ED visit, she says.
Medical malpractice attorneys say these practices strengthen the EP’s defense against a malpractice suit alleging misdiagnosis of an ED patient:
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Don’t omit documentation of “curbside” consults.
If an EP suspects compartment syndrome and briefly talks to an orthopedist who says the patient doesn’t need to be admitted, this “curbside” consult probably won’t make it into the patient’s chart. But if the patient’s family later sues the EP for failing to diagnose the condition, the EP will likely regret the decision not to document.
“Documenting that consult — even though the consultant didn’t see the patient — can be very helpful,” says Oetter.
Many EPs are reluctant to docu-ment such conversations, fearing that colleagues, upon learning they’re be-ing named in the chart, won’t provide informal consults in the future.
“But if you ever get sued, and part of your defense is going to be ‘I ran it by so-and-so,’ and it’s not anywhere in the chart, the only way we have to verify that is your memory of a conversation,” says Oetter, adding that plaintiff’s attorneys are predictably skeptical of anything that is not in the chart.
Oetter recommends having a straightforward conversation with the consultant about the need for some documentation of the discussion. Some consultants are more comfortable with a general note stating, “spoke with surgeon” without including their name; others may adamantly state that they don’t feel comfortable with any documentation.
“But if somebody says ‘No, I’d really rather you didn’t,’ maybe that’s not somebody you want to be consulting with,” Oetter says.
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Address inconsistent charting in real time.
“While emergency personnel and nursing staff often provide very helpful information, it is incumbent on the ER physician to take their own history, to make sure nothing has been overlooked,” Greenwood emphasizes.
If the triage nurse’s, nurse practitioner’s, physician assistant’s, or resident’s history differs from the EP’s, plaintiff attorneys can use the discrepancy to support allegations that the patient was misdiagnosed.
“Conflicting information is difficult for a jury to sort out,” Gilman says.
If a nurse’s history reports a cough that isn’t apparent during the EP’s evaluation, for instance, the EP should ideally address the inconsistency by charting, “the patient was noted to have a cough earlier, but the cough has now resolved.”
Gilman often sees EMRs without any narrative to counter a plaintiff’s allegations of failure to diagnose.
“Often, an EP says something like, ‘I know I would have asked the patient to explain what might exacerbate or mitigate his/her symptoms, but there is no place for me to include the information on the template,’” Gilman says. Without any documentation, the EP defendant is left to claim that it’s his or her usual practice to do so. “Nothing takes the place of a detailed note,” Gilman adds.
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Pamela S. Gilman, JD, Barton Gilman, Boston. Phone: (617) 654-8200. Fax: (617) 482-5350. E-mail: [email protected]
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Judy Greenwood, JD, Philadelphia. Phone: (215) 557-7500. Fax: (215) 557-7503. E-mail: [email protected]
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Jennifer K. Oetter, JD, Partner, Lewis Brisbois, Portland, OR. Phone: (971) 712-2809. Fax: (971) 712-2801. E-mail: [email protected]
