EXECUTIVE SUMMARY

Overriding safety prompts without explanation opens the door for the plaintiff’s attorney to allege that the EP defendant failed to meet the standard of care. To reduce legal risks, EPs can:

  • explain their clinical judgment;
  • include an explanation in progress or consultation notes if the EMR lacks a field to provide decision-making notes;
  • argue that safety prompts are not the standard of care, and are not mandatory.

Emergency physicians (EPs) routinely override safety prompts in clinical decision support systems for very good reasons. However, a skilled plaintiff attorney can depict it as a rogue physician’s negligence.

“A liability exposure can be presented if there is no field in the electronic record for the physician to explain the reason he or she overrode the prompt,” says Kenneth N. Rashbaum, JD, a partner at New York City-based Barton.

If a complication occurs, such as an adverse drug reaction, failure of efficacy of the dosage, or other untoward event, the ED defense team has a problem. “How will the emergency physician be able to recall the basis for that decision when a lawsuit or investigation arises months or years later?” Rashbaum asks. “The difficulty this can pose for the defense can be stark.”

‘Easier Sell’ if Documented

Ideally, the electronic medical record contains a field to document the rationale for the override of a safety prompt. If so, the EP “should do so, with all pertinent information at his or her hands at the time the decision was made, and the clinical basis for the decision,” Rashbaum offers.

Documentation of the EP’s thought process is critical to the defense. However, not all electronic health records contain such fields. In this case, advises Rashbaum, “be sure to explain the reason for the override in another part of the record.” For example, the EP might include this documentation in progress or consultation notes.

After assessing the patient, the EP may conclude that the chest pain is not cardiac in nature. “They don’t follow the prompts that would send up the signal that it’s a serious situation, because in their professional opinion, it doesn’t warrant those actions,” says Joan Cerniglia-Lowensen, JD, an attorney at Pessin Katz Law in Towson, MD. The EP might conclude the chest pain is [gastrointestinal] or musculoskeletal in nature.

Absent any evidence that the EP considered a cardiac cause for the chest pain, it could appear later that the EP simply disregarded the prompt that would have resulted in a cardiac care team responding. Testimony that the EP did not believe the prompt was appropriate in this instance can appear self-serving. If there is no documentation in the ED chart, “we deal with the documentation we do have and try to expound on it,” Cerniglia-Lowensen notes. “But if the documentation is there, it’s certainly an easier sell.”

Not Standard of Care

In most jurisdictions, malpractice is defined as a departure from accepted standards of care that proximately causes injury or death. If a court considers the safety prompt to be a standard of care, then the EP who has overridden the prompt has violated the standard of care.

“The plaintiff’s case for malpractice is established to the extent that, except for an argument on causation, a motion to discuss the claim would be denied,” Rashbaum says.

Plaintiff attorneys frequently contend that safety prompts represent the standard of care set by the hospital. Since the EP disregarded these, plaintiff attorneys argue, the standard of care was breached.

“They will say, ‘Your organization is saying you have to do this to keep patients safe, and there is a good reason for it, and you violated that,’” Cerniglia-Lowensen explains. The EP defendant is portrayed as a rogue operator who decided not to follow the safety protocols, putting the patient’s life at risk for no good reason. The defense argues that the safety prompts are not the standard of care and are not mandatory. “They are guidelines to help EPs in the thinking process, but it is for the EP to make the decision,” Cerniglia-Lowensen adds.

The standard of care is established by how the average EP in the community acts in the same or similar situation. The ED defense team has to educate the jury on this important point. “We have to say, ‘You can’t look at the outcome and work backwards,’” Cerniglia-Lowensen stresses. “You have to look at what the EP knew at the time.”

SOURCES

  • Joan Cerniglia-Lowensen, JD, Attorney, Pessin Katz Law, Towson, MD. Phone: (410) 339-6753. Fax: (410) 832-5626. Email: jclowensen@pklaw.com.
  • Kenneth N. Rashbaum, JD, Partner, Barton LLP, New York. Phone: (212) 885-8836. Email: krashbaum@bartonesq.com.