Many claims involving misdiagnosis of abdominal pain in the ED involve multiple visits to the ED, or to other providers such as primary care physicians or urgent care centers, says Justin Corcoran, JD, an attorney at O’Connor, O’Connor, Bresee & First in Albany, NY.
“Many claims hinge on whether the clinical picture required more intervention such as imaging or consults with surgery,” he says.
Common allegations include failure to accurately obtain relevant history, failure to appreciate changes in the presentation during the ED visit, and failure to conduct and document an appropriate physical exam — including details of the abdominal exam beyond just the presence of rebound tenderness or guarding.
“In many cases, there were signs that, in hindsight, should have increased suspicion for an etiology that required more workup,” Corcoran says.
Corcoran defended two EPs who saw a patient, later diagnosed with a perforated appendix, who presented on consecutive days for nonspecific, diffuse abdominal pain without any overt peritoneal signs. The patient reported that she and a friend vomited after eating at the same ice cream stand the day before her first visit. The EPs performed a CT scan on the first visit and reported the scan negative for appendicitis, with the caveat that it was difficult to visualize the appendix.
The patient presented with fever and elevated white blood cell count.
“But the absence of right lower quadrant pain pushed the EPs to consider nonsurgical diagnoses,” Corcoran says. No one performed another CT scan in the ED, and the EPs requested a GI consult instead of a surgical consult.
“The unusual presentation led the EPs away from surgical diagnoses, and probably contributed to their sparse documentation of detailed serial exams and bias against additional imaging,” Corcoran says.
The jury returned a verdict in favor of the EPs. Corcoran says these two factors likely played a role in their decision making:
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That the patient received detailed discharge instructions, which prompted her to return after the first presentation;
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That she was referred to a specific specialist, rather than simply discharged, after the second ED presentation.
This likely persuaded the jury that while both EPs were uncertain of the precise diagnosis, they felt assured that the patient would seek further care if she did not improve. “Even though they ‘missed’ the diagnosis, they kept the ball rolling with their discharge instruction and referral,” Corcoran says.
Complicating Factors
What is the EP’s best defense in cases in which a patient with abdominal pain is discharged from the ED, only to return with a serious or surgical diagnosis? In Corcoran’s experience, it’s “a factual note that shows a careful physical exam, consideration of appropriate diagnoses, the rationale for the disposition, and discharge instructions that highlight for the patient what to do if she does not improve.”
Here are some factors that Corcoran has seen complicate the defense of claims involving abdominal pain patients:
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The ED chart contains only ambiguous documentation.
“The most common shortfall is omitting details about pertinent benign or negative findings on exam like palpation and auscultation, and reassuring history — when the patient last ate, passed stool, or exercised,” Corcoran says.
In Corcoran’s experience, it’s much easier to convince a jury that the EP provided an appropriate evaluation if these details are explicitly mentioned. If they’re not, EPs are forced to claim it’s their “custom and practice” to perform a thorough exam but only document positive findings.
“If the EP attributes abdominal pain to foodborne illness, it’s more defensible if the suspected food source is identified and the chronology of signs/symptoms documented,” Corcoran says.
This strong documentation can sometimes dissuade a plaintiff’s lawyer evaluating an ED chart from taking the case in the first place.
“Similarly, it’s easier to defend the EP who details her impression after touching, pressing, and listening and, if appropriate, noting how these findings differ from another provider’s findings,” Corcoran says.
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The EP selected an unsupported diagnosis, instead of a diagnosis that reflects uncertainty.
For instance, the EP documents a diagnosis of “gastroenteritis” instead of “abdominal pain.”
“In some cases, the diagnosis recorded in the chart is not really supported when details of the history are investigated,” Corcoran says.
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The EP failed to document informal discussions with other ED providers or on-call specialists.
Corcoran has seen many cases in which “curbside” consults informed the EP’s clinical judgment and patient disposition, but weren’t noted in the chart — and the consultant denies any recollection of the conversation. One such case involved an infant, later diagnosed with appendicitis, who was triaged to the fast track. A physician assistant (PA) saw the patient. The PA then asked the EP to examine the patient.
“The EP performed an independent exam and called an on-call surgeon, who opined that appendicitis or other surgical diagnosis was very unlikely given the presentation,” Corcoran says. Neither the EP nor the PA documented the EP’s exam. The PA only wrote one clinical note.
All parties agreed the standard of care required the EP to examine the patient after the PA asked for help. However, the patient’s parents insisted that no EP examined the patient.
“The EP prevailed at trial, but likely could have avoided the suit entirely if the PA had noted the EP’s involvement or, preferably, if she had documented her own exam,” Corcoran says.
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The EP failed to appreciate and reconcile available contradictory evidence.
Discrepancies are often noted between the observations of different ED providers, such as different descriptions of pain in the nursing or emergency medical services charting.
“One aspect that we find in defending almost all these claims is a discrepancy between the patient’s description of pain and other signs or symptoms, and the recorded description by the ED clinicians,” Corcoran adds.
Here are four factors, in Corcoran’s experience, that made missed diagnosis claims more defensible:
1. Evidence of the EP’s rationale.
“The electronic medical record has actually discouraged the type of documentation that is most helpful to the doctor’s defense,” Corcoran says.
This is because it tempts the EP to rely on a template instead of an original, individualized assessment of the history, physical exam, and, most importantly, the reason why the EP has decided that the patient’s abdominal pain does not require admission or referral.
2. Conducting and documenting serial exams, and the patient’s responses to questions.
“This can help justify clinical decisions to discharge, especially when they detail specifically how and when improvement was noted,” Corcoran explains.
3. Explicit and detailed discharge instructions.
These should ideally include the name of the physician to see for follow-up care, the date by which such follow-up should occur, and the specific circumstances under which the patient should return to the ED.
“This can rescue an otherwise difficult case, because it can place some responsibility back on the patient,” Corcoran says.
This strategy can also bolster the argument that the EP was always open to the possibility that the true diagnosis was not apparent at discharge, but could be detected if things changed at a later point in time.
4. Documentation showing that the EP explained to the patient that a more serious diagnosis cannot be ruled out.
“This can demonstrate that the uncertainty in making a concrete diagnosis was part of the exercise of clinical judgment at the time of treatment — not just after a lawsuit has been filed, as is so often claimed by plaintiffs’ counsel,” Corcoran says.
SOURCE
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Justin Corcoran, JD, O’Connor, O’Connor, Bresee & First, Albany, NY. Phone: (518) 465-0400. Fax: (518) 465-0015. Email: [email protected].
