Who’s Ultimately Responsible for Bad Outcomes?
In a recent malpractice case, the outgoing EP called for a stat surgical consult for a patient presenting with a perforated appendix. However, the surgeon never arrived. The incoming EP didn’t follow up on the stat consult because she never was told about it.
“The patient develops septic shock and dies several days later. The outgoing physician was sued for failure to communicate the consult to the incoming physician,” says Stephen A. Barnes, MD, JD, FACLM, a trial attorney at McGehee, Chang, Barnes, Landgraf in Houston.
The incoming EP was not named in the suit.
“The outgoing EP did not point any fingers at her because the patient already had admitting orders filled out by the outgoing EP,” Barnes explains.
Mark Tripp, MD, an EP with Winchester (VA) Emergency Physicians and Front Royal (VA) Emergency Physicians, is reviewing a malpractice case in which both the incoming and outgoing EPs have been deposed, with disagreement on who is responsible for the patient’s bad outcome. Tripp says that in his experience, whoever saw the patient last generally bears the brunt of the blame.
“Usually, it’s the last man standing that is held responsible,” he says, noting he recently reviewed a case in which the EP made many mistakes. “But the patient did go to the urologist the next morning and was still OK at that time. So it ended up falling on the urologist.”
Barnes says that incoming EPs face more liability exposure if they are left with a patient who is relatively early in the diagnostic and treatment phase. For instance, a patient might still be awaiting a CT scan to diagnose abdominal pain, with blood work results not yet returned.
The outgoing EP is more likely to be held liable in a malpractice lawsuit if he or she already initiated the workup and treatment plan, according to Barnes. An example would be an abdominal pain patient whose CT scan has revealed appendicitis, with blood work returned and the surgeon already called.
“It is far more persuasive to a jury that the doctor who came up with the diagnosis and plan is responsible for making sure that the plan continues after she finishes her shift in the ED,” Barnes says.
The Most Common Scenario
Barnes says that in his experience, “by far and away, the most common scenario where both outgoing and incoming EPs are sued together is when a patient presents with a STEMI [ST-elevation myocardial infarction] at a change of shift.”
All the claims have one thing in common: The patient’s window of time for treatment with thrombolytics elapsed during the change of shift.
“I have had three cases in five years with this scenario,” Barnes says. In all three cases, the 90-minute “door-to-balloon” time began at the end of the outgoing EP’s shift and elapsed during the incoming EP’s shift. Both the outgoing and incoming EPs were sued in each case, and all three cases were settled.
One possible defense for an incoming EP is that the patient’s bad outcome couldn’t possibly have been prevented, because the outgoing EP’s care was so poor.
“In this scenario, even if the incoming EP continues to provide substandard care, there is no liability,” Barnes explains, noting this is because even if the incoming EP delivered perfect care, it wasn’t enough to stop the patient’s bad outcome.
In other cases, it is not too late for the incoming EP to rectify the situation. In this scenario, “the point of no return is reached after the second EP is caring for the patient,” Barnes says. “So both the outgoing and incoming EPs who provided substandard care are liable.”
Evidence of Communication
Catherine Vretta, MD, MPH, an EP at St. John Providence in Detroit, says the outgoing EP should state clearly two things in the ED chart:
- the patient’s condition at the time the outgoing EP left;
- that care was turned over to the incoming EP.
Barnes says “hard evidence of communication” between the two EPs about the patient’s diagnosis and treatment plan helps the defense. Ideally, the incoming EP documents, “From here on, the plan is ...”
“This is far better than testimony from an EP who is now being sued and thus subject to credibility issues, that ‘Well, we talked about this patient when I came in,’” Barnes says.
Tripp likes to see the outgoing EP use these words: “Care has been transferred to Dr. X.” This protects the EP in these two scenarios:
- If the diagnosis didn’t need to be made before the patient left the ED;
- If the diagnosis did need to be made before the patient left the ED, but the timing wouldn’t have changed the outcome.
EPs often argue, justifiably, that it is just not possible to document all the information that’s discussed at change of shift.
“But a jury does not understand that, particularly when I can show them that nurses document such shift change handoffs as part of their own standard of care,” Barnes notes.
Minimize Sign Overs
Patient handoffs during change of shift are a well-known area of risk for both ED patients and EPs.
“In my group, we try to minimize sign overs,” Tripp says. At one ED, EPs are scheduled to work eight- or nine-hour shifts, with the understanding that they will stay until they’re done with their patients.
Also, there is double coverage during the last hour of the EP’s shift, with outgoing EPs handling the less complex cases.
“So they are not picking up a complicated case 30 minutes before the end of their shift,” Tripp explains.
An outgoing EP might be unable to discharge a patient before the end of his or her shift. For instance, a patient with an ankle sprain might be delayed in obtaining X-ray results because radiology is busy. In this case, the outgoing EP can inform the incoming EP that if the X-rays are negative, the patient can be discharged. Otherwise, the incoming EP takes over the case, using his or her own clinical judgment.
“In that situation, the outgoing EP would be the one responsible because I’m not asking the incoming to do anything other than look at the report,” Tripp notes
Incoming EP Can Re-examine
Incoming EPs might find that carefully reviewing the outgoing EP’s history and physical, and re-examining the patient, is time well-spent. Vretta warns, “Their decisions for patient disposition will otherwise be made utilizing the outgoing physician’s sign-out.”
The incoming EP is the one who will discharge the patient.
“So it’s really up to them to make sure they know the patient’s situation. If it means you have to do another H&P yourself, you need to do that,” Tripp says.
A complete head-to-toe physical exam might not be necessary, “but the incoming EP should do whatever it takes to assure that he knows what’s going on with the patient,” Tripp emphasizes.
The outgoing EP’s history could be incorrect, or the physical exam incomplete. Vretta gives this example: “A rectal exam may not have been performed on an abdominal pain patient. That ultimately ends up being a significant GI bleed with delay of diagnosis.”
Another possibility: The ED patient deteriorates over time. The outgoing EP may have reported what, at the time, was a stable patient. “By the time the disposition arises, the incoming physician may be dealing with an entirely different level of patient stability,” Vretta says.
- Stephen A. Barnes, MD, JD, FACLM, McGehee, Chang, Barnes, Landgraf, Houston. Email: [email protected].
- Mark Tripp, MD, FACEP, Winchester (VA) Emergency Physicians/Front Royal (VA) Emergency Physicians. Phone: (540) 520-9996. Email: [email protected].
- Catherine Vretta, MD, MPH, St. John Providence, Detroit. Phone: (248) 760-1824. Email: [email protected].
Whoever saw the patient last generally bears the brunt of the blame.
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