An emergency physician (EP) believed she’d ruled out preterm labor in a patient pregnant with twins who presented with cramping and lower abdominal pain.
“The patient was sent home prior to results from a urinalysis,” says Stephen A. Barnes, MD, JD, FACLM, a trial attorney at the lawfirm McGehee, Chang, Barnes, Landgraf in Houston.
An hour later, the results revealed a urinary tract infection — a risk factor for preterm labor. No one contacted the patient about this result.
“Within six hours of returning home, the patient gives birth to one twin in her bed. The other twin is born on the hardwood floor while paramedics rush in to cut the cord wrapped around the baby’s neck,” Barnes says.
The EP was sued for improperly discharging the patient from the ED. The hospital was sued for its deficient policies regarding contacting patients who have been discharged from the ED prior to abnormal laboratory results becoming available, Barnes explains.
If test results come back after an ED patient is discharged, “any positive results demand a timely follow-up process, including notification of the patient, if indicated,” says Mark F. Olivier, MD, FACEP, FAAFP, an EP at Lafayette, LA-based Schumacher Clinical Partners. Failure to contact a patient has serious legal ramifications for the EP if a bad outcome results, Olivier warns.
That was the case when an EP diagnosed a patient with pyelonephritis. The patient presented with significant fever, right flank pain, and dysuria.
“Since the patient was stable after IV hydration and able to tolerate oral medications, a decision was made to treat the patient with outpatient antibiotics with close follow up,” Olivier says.
Staff obtained urine and blood cultures. After receiving a dose of IV antibiotics followed by oral antibiotics, the patient was discharged with instructions to follow up with a provider in two days.
“On the following day, the blood culture is positive for growth in two bottles,” Olivier notes. “The ED was notified. However, since it was a very busy day, the patient was not called until the following day.”
The patient later returned with severe sepsis and had a prolonged ICU stay.
“A lawsuit was filed for delayed treatment,” Olivier adds.
At the time of discharge, the ED should confirm a way of contacting patients with pending X-rays, cultures, or ancillary studies, Olivier recommends.
“Hospitals should have a system in place to identify any discrepancies, determine if the discrepancy will alter the patient’s treatment plan, and contact the patient if the treatment plan needs adjustment,” Olivier says.
The discrepancies — and any follow-up measures — must be documented and properly dated and timed.
“ED providers should play an active team role with the hospital in this process, and resist any temptation for delays,” Olivier says.
If the EP fails to take appropriate action based on new information obtained after patient discharge, and the patient suffers an adverse result, “it will be a very uphill battle to convince a jury that the EP acted reasonably,” says Los Angeles healthcare litigator Damian D. Capozzola, JD.
If EPs are hospital employees, this can bring the hospital into the suit.
“Hospitals should work with qualified counsel on the duties and protocols that apply when receiving material test results post-discharge,” Capozzola says, noting patients sometimes feel a false sense of reassurance after discharge. “They get back to their daily lives, and don’t heed calls from medical professionals to return for further follow-up.”
If something goes wrong, patients still may blame the EP.
“Documenting the efforts to bring the patient back right away is one very important protective step in such situations,” Capozzola says.
ID and Address Discrepancies
An EP diagnosed a patient with bronchitis after interpreting a chest X-ray as normal. The following day, the radiologist’s report noted a faint small right upper lobe nodule worrisome for early malignancy, and recommended a follow-up CT scan.
“Unfortunately the patient is never notified of the finding. The report was not forwarded to their local physician, since they had none,” Olivier explains.
Six months later, the patient returned to the ED with cough, fever, weight loss, and hemoptysis. A repeat chest X-ray showed a large right upper lobe mass with a post-obstructive pneumonia and mediastinal adenopathy.
“A workup of the mass indicated malignancy with metastasis. A lawsuit was filed for delayed diagnosis,” Olivier says.
A 2011 retrospective study in the ED showed a discrepancy rate of 2.9% between the radiologist’s X-ray interpretation and that of the ED provider.1 Only 0.56% of the discrepancies resulted in a change in the patient management.
“However, the patient or their attorney may interpret the discrepancy as the cause of a poor outcome,” Olivier explains. “If a significant discrepancy is overlooked and it causes harm to the patient, the ED provider and hospital may be liable.”
Scott Martin, JD, senior counsel with Husch Blackwell in Kansas City, MO, has seen cases in which previously unknown ECG abnormalities were identified when a cardiologist reviewed the studies. The cardiologist noted these abnormalities on the report, but these were not forwarded to the patient or the patient’s primary care physician.
“When the patients died from cardiac arrest, the families were surprised because they believed that there were no particular cardiac concerns,” Martin says, explaining that both the hospital and ED can be sued in this situation. “There is a duty shared by a physician and the hospital or ED group to relay and respond to abnormal test results.”
In many situations, the test results will not be available while a particular EP is completing the actual shift during which he or she evaluated the patient.
“But there must be a follow-up system,” Martin stresses. “The claim will likely be that the hospital or ED group either had inadequate policies or failed to follow the policies.”
Martin says EDs should implement clear policies and procedures to make sure the patient and the patient’s primary care physician receive relevant test results.
“It will often be the case that the ED physician has ended her shift,” Martin says. “But the department is still responsible to share the information.”
If the patient is not notified of abnormal results, or there is a delay in notification, and the patient develops a complication or untoward event, a malpractice lawsuit could be initiated against the hospital, the EP, and the admitting physician.
“Unfortunately, everyone will probably be brought into the lawsuit,” Olivier says. “The target may be the physician who ordered the test.”
A pending malpractice lawsuit involves this scenario. The EP was notified of an incidental finding on a CT scan that required eventual follow-up.
“The admitting team was not notified, and the issue was never addressed, resulting in a delayed cancer diagnosis,” says Megan Kures, JD, senior attorney in the Boston office of Hamel Marcin Dunn Reardon & Shea.
Olivier says that although the admitting team should review all diagnostic test results once the patient is admitted, the ED provider can minimize any breakdowns in communication and improve patient safety in these ways:
- If the finding is known in the ED, include this in the clinical impression so it’s flagged for the admitting team.
- Alert the admitting team of the finding at the time of the handoff when the patient is admitted.
- Install a process to communicate the discrepancy to the admitting team if it’s returned to the ED after admission.
“The key here is making sure the admitting team is aware of the finding, since they will be creating the discharge plan,” Olivier underscores.
- Petinaux B, Bhat R, Boniface K, et al. Accuracy of radiographic readings in the emergency department. Am J Emerg Med 2011;29:18-25.
- Stephen A. Barnes, MD, JD, FACLM, McGehee, Chang, Barnes, Landgraf, Houston. Email: firstname.lastname@example.org.
- Damian D. Capozzola, JD, The Law Offices of Damian D. Capozzola, Los Angeles. Phone: (213) 533-4112. Fax: (213) 996-8304. Email: email@example.com.
- Megan Kures, JD, Senior Attorney, Hamel Marcin Dunn Reardon & Shea, Boston. Phone: (617) 482-0007. Email: MKures@hmdrslaw.com.
- Scott Martin, JD, Partner, Husch Blackwell, Kansas City, MO. Phone: (816) 283-4678. Email: Scott.Martin@huschblackwell.com.
- Mark F. Olivier, MD, FACEP, FAAFP, Emergency Physician, Schumacher Clinical Partners, Lafayette, LA. Phone: (337) 354-1125. Fax: (337) 262-7275. Email: Mark_Olivier@schumachergroup.com.