EXECUTIVE SUMMARY

Sparse or inaccurate charting allows plaintiff attorneys to allege inadequate neurological examination in missed stroke cases against EPs. This documentation strengthens the defense:

  • a thorough description of all the aspects of the exam;
  • an explanation of why the EP didn’t think stroke was likely;
  • that the EP consulted a neurologist.

A 34-year-old man was found on the floor by coworkers shortly after returning from a dental procedure. “He arrived in the ER within an hour of last being observed normal, and regained consciousness,” says Scott T. Heller, Esq., an attorney with Rosenberg, Jacobs, Heller & Fleming in Morris Plains, NJ.

At first, the patient’s slurred speech was attributed to dental anesthesia. However, the patient soon began to experience some unilateral weakness and aphasia. “It was not clear whether ER staff promptly reported these changes to the ER physician,” Heller explains.

The patient waited three hours for a CT scan to be ordered, and five hours for a neurology consult to be requested. With no evidence of hemorrhagic stroke, the patient would have been a candidate for tissue plasminogen activator (tPA). “But the treatment window had passed,” Heller notes.

The patient was transferred for neurosurgical intervention to try to remove a clot in the basilar artery. “Tragically, the intervention was unsuccessful,” Heller laments. “The patient was left ‘locked in,’ such that he is mentally alert but physically incapacitated.”

The patient is unable to communicate other than by eye movements, creating messages on a visually activated keyboard. The patient’s wife provides around-the-clock care to her husband, with some nursing assistance.

“The defense contended there was a low risk of stroke in a 34-year-old generally healthy male, and that the dental anesthetic was a plausible explanation for the slurred speech, at least initially,” Heller says. These factors resulted in a settlement:

  • the delay in recognition that symptoms were evolving;
  • the delay in communicating the patient’s worsening condition to the EP;
  • the lack of a prompt stroke workup, including CT scan and neurology consults, as per the hospital’s own protocols;
  • the likelihood of an extremely large verdict, considering the patient’s severe, permanent disability, loss of income and services, costs of lifetime care, and other factors.

“The problem I most often see for EPs is when the patient presents with some, but not all, of the ‘classic’ stroke symptoms,” Heller offers. The EP considers stroke, cannot rule it out, but considers something else a more likely explanation.

In the above case, the EP believed dental anesthesia explained the patient’s slurred speech. “It was not until additional symptoms appeared that the EP elevated stroke in his differential,” Heller says.

However, the dental anesthesia did not explain the patient’s prior loss of consciousness.

“The EP in this case had not ruled out stroke,” Heller says. “But despite having neurology and other resources available, the EP did not consult anyone until it was too late to give tPA.”

In missed stroke claims against EPs, the examination of the patient is scrutinized. Typically, plaintiff attorneys criticize the EP for these reasons:

  • Failure to record the “last known normal” time.

“Without this information, plaintiff attorneys can argue that the window of opportunity to administer tPA was missed because of the ED delay,” Heller says.

  • Failure to conduct a thorough physical examination comparing the function of the affected and unaffected sides.

“Observing the patient walk, if he or she can, may provide evidence of imbalance or comparative weakness, which may provide insight into the diagnosis,” Heller offers.

  • Relying on the absence of cranial nerve dysfunction to rule out stroke.

An evaluation of cranial nerve function may reveal clues pointing toward stroke. “But the absence of cranial nerve dysfunction does not rule out stroke,” Heller adds.

  • Failure to get an interpreter.

Is the patient able to communicate verbally, identify commonly known objects, recall simple words, and follow commands? The EP’s evaluation can be hindered by language barriers.

“It is generally not advisable to rely upon a family member to translate,” Heller says. Such translation may be less than accurate for several reasons, including emotional distress or a family member’s tendency to minimize complaints. “They may later deny what they told the EP, or say that the EP misunderstood their translation,” Heller adds.

  • Overreliance on CT scan.

CT imaging is necessary to rule out a hemorrhagic stroke, a known contraindication to the administration of tPA. However, CT imaging often fails to detect evidence of cerebral infarct in the early phase of a stroke.

“Therefore, the absence of CT findings indicative of infarct to a radiologist in the initial hours of a stroke does not necessarily mean the patient is not having a stroke,” Heller says.

  • Failure to reassess.

After the initial evaluation, follow-up examinations reveal if symptoms are increasing, decreasing, or remaining unaltered. “By reviewing notes entered by other healthcare providers in the interim, subtle changes may become evident to the EP,” Heller adds.

Only a Brief Note

Often, the thoroughness of the neurological exam is attacked in missed stroke cases. Frequently (and unfortunately for the defense), documentation is sparse.

“In reviewing the ED chart, many times I say, ‘I really wish there was a better documented neurological exam,’” says Mark Spiro, MD, chief medical officer of the Walnut Creek, CA-based The Mutual Risk Retention Group. Here are some frequently recurring issues Spiro sees in the ED medical record:

1. There is only a very brief mention of what the neurological exam entailed.

“That is especially problematic if the family disagrees with what’s in that note,” Spiro stresses. “That’s where we get into trouble.”

The ED chart might describe an unremarkable exam with no specifics about the upper and lower extremities; yet, a family member insists she told the EP that the patient was unable to move his left arm.

Often, the ED documentation doesn’t cover all aspects that comprise a complete neurological examination. These include strength, sensation, gait, and mental status. “That doesn’t mean it wasn’t done,” Spiro notes. EPs then are forced to testify as to their “usual and customary practices” for conducting neurological exams. The defense explains that all the right things happened, but simply weren’t documented.

“You are asking the jury to believe the emergency physician, and not the family who is saying, ‘He was only in there a minute and didn’t do anything,’” Spiro adds.

2. Inaccurate electronic medical record (EMR) templates make the EP seem careless.

One malpractice case involved a patient who was paralyzed and unable to walk. Yet, the EMR template indicated the patient had “normal gait.”

While a blatant inaccuracy doesn’t necessarily mean the plaintiff will prevail, it certainly puts the EP on the defensive. “That is fodder for plaintiff attorneys, and can really hurt the defendant,” Spiro says. “You have to show the jury that you are not sloppy.”

3. Nursing notes on the patient’s neurological status conflict with something the EP documented.

Discrepancies often go unaddressed in the ED chart. “If the nurses are charting ‘Mrs. Jones was drooling when she tried to speak,’ and the EP’s documentation says nothing about it, that is problematic,” Spiro warns.

4. There is no indication of why the EP did not think the patient was suffering a stroke, or why the EP believed the patient could be discharged safely and worked up as an outpatient.

Including medical decision-making is legally protective for EPs. “It is also great for better patient care,” Spiro explains. “It forces the provider to possibly think a little more deeply about the case.”

Posterior circulation strokes are a particularly challenging diagnosis in the ED, Spiro says. This is because patients will present with generalized weakness, dizziness, and occasionally visual symptoms, as opposed to the classic weakness on one side of the body.

“In these cases, the EP should show that stroke was considered, but thought unlikely,” Spiro offers. For instance, the EP might chart, “symptoms bilateral, not unilateral,” or “symptoms were brief, resolved quickly.”

5. There is no indication that the EP consulted a neurologist.

“We have this issue with some of our cases,” Spiro says. “Getting a second opinion shows that you were trying hard and expanding your thinking about the case.”

In Heller’s experience, plaintiff’s experts are especially critical of EPs who cannot rule out a stroke, but fail to request a prompt in-person consultation with neurologists.

“Even a documented telephone consultation may be of some help, though it is certainly harder for the neurologist to form a clinical impression on a patient the neurologist cannot see,” Heller says. Neurologists are likely to claim they relied completely on the information communicated by the EP, which may or may not have omitted something potentially relevant.

Some EDs allow EPs to administer tPA without consulting with a neurologist, while others require a consult. Regardless of the ED’s policy on this, Spiro says it is always reasonable to consult with a neurologist when there is any uncertainty about the diagnosis or treatment.

“If we call [neurologists] for what they feel is frivolous, they will become inured to our requests and may not be as responsive when we really do want them,” Spiro notes. “I would call when you really want some guidance in the diagnosis or treatment.”

Documentation of a neurology consult, a complete neurological exam, and time of symptom onset puts the ED defense team in a particularly strong position, Spiro says. This was evident in a recent malpractice case in which a patient was admitted from the ED and shortly afterward experienced a bad outcome from a stroke. The EP had documented a neurological exam thoroughly, along with a history that put the patient just outside the normal time window for administering tPA.

“The EP did everything appropriately. It was all documented in the chart,” Spiro says. “The jury saw that, and came back with a defense verdict.”

SOURCES

  • Mark Spiro, MD, Chief Medical Officer, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0124. Email: spirom@tmrrg.com.
  • Scott T. Heller, Esq., Rosenberg, Jacobs, Heller & Fleming, Morris Plains, NJ. Phone: (973) 206-2500. Fax: (973) 206-2501. Email:sheller@rrjhlaw.com.