The authors of a recent study found EPs considered any probability greater than 1% for acute coronary syndrome (ACS) enough of a risk to warrant admission.1

The researchers set out to understand how EPs determine risk and decide to admit patients with low-risk chest pain. They surveyed 208 emergency medicine residents and faculty about their perceived risk of various scenarios and an admission decision. Physicians used qualitative terms in ways that are different from how those terms are used in typical conversation. This can lead to miscommunication during shared decision-making processes.

“Probability or utility models are inadequate to describe physician decision-making for patients with chest pain,” the researchers concluded.

Kathleen M. Ryan, JD, has found some ED chest pain protocols to be “incredibly problematic” in terms of malpractice defense. “The policies I’m seeing really do not permit physician discretion,” she explains.

Many EDs use the HEART (History, Electrocardiogram, Age, Risk factors, and initial Troponin) score to determine patients’ short-term risk for major adverse cardiac events. Some ED policies indicate that even if the chest pain patient’s score returns as low risk, the EP still must determine an initial cardiac troponin level and an initial ECG.

On top of that, the EP may have to determine a second troponin level and another ECG, with repeat ECG tests if the patient reports continued pain.

“To me, that does away with any medical judgment the EP should be able to offer,” says Ryan, an attorney at Albany, NY-based Thorn Gershon Tymann and Bonanni.

Two recent ED malpractice lawsuits share almost identical fact patterns. In both cases, the EP defendants potentially will be found negligent because they did not follow the chest pain protocol. “I’ve seen too many of those cases recently,” Ryan laments. “I think everyone needs to look at their protocols to make sure there is sufficient room for medical judgment.” In both malpractice lawsuits:

  • the initial troponin and ECG were negative;
  • the patient reported recent physical activity that would have caused muscle strain, which would serve as a noncardiac explanation for the chest pain;
  • the patient improved while in the ED;
  • the patient was in no pain at the point of discharge from the ED;
  • the patient was referred to a cardiologist and instructed to return to the ED if pain returned or worsened.

In both cases, the patient returned in a few hours with full-blown cardiac arrest. In the EP’s medical judgment, the patients were not experiencing a cardiac event at the time of the ED visit. Additionally, both patients received excellent care when they returned to the ED, a fact the plaintiffs do not dispute. Regardless, the EP still can be held liable for not following the chest pain protocol.“Even if it’s not medical malpractice, there is arguably negligence in failing to follow the hospital protocol,” Ryan explains.

Ryan M. Shuirman, JD, defended an EP in malpractice litigation involving a 52-year-old male smoker with new-onset chest pain. The patient demonstrated negative cardiac troponin levels and nonspecific ECG changes.

“His chest pain resolved with nitroglycerin, though it was resolving before it was given, and he was already trending toward discharge,” says Shuirman, an attorney at Yates, McLamb & Weyher in Raleigh, NC.

The EP called the patient’s primary care physician (PCP), who agreed the patient could follow up as an outpatient. At the time of discharge, the EP thought the presentation was inconsistent with ACS. But she also expected the PCP to initiate a full cardiac workup, including a stress test, when the patient presented within the following week.

The patient saw the PCP several times over the next few months but never underwent a cardiac workup. This was because the PCP had concluded the patient’s acute presentation in the ED was consistent with costochondritis. The patient died approximately four months after his ED visit. Autopsy revealed significant blockages in his coronary arteries.

In the subsequent malpractice litigation, Shuirman recalls struggling to define “low risk.” The defense team’s experts used tools such as the Thrombolysis in Myocardial Infarction (TIMI) Risk Score to demonstrate that the patient was low risk at the time of the ED visit.

“But a patient who is ‘low risk,’ with a 2% or 3% chance of chest pain being ACS, is still 1/50 or 1/33, which might be difficult for a jury to reconcile,” Shuirman says.

Then, the plaintiff attorney asks the jury, “Would you want your mother to be the one out of 33 patients who actually is experiencing an MI but who is discharged home?”

“‘Low risk’ is a relative term, and the risk may be low except to the patients who have the disease,” Shuirman notes. The case resulted in a hung jury and resolved without payment on behalf of the provider. The PCP also was a defendant, but settled before trial.

“The communication between the EP and the PCP was definitely an issue,” Shuirman laments. The PCP testified that he was persuaded by the EP’s description of the patient’s chest pain as musculoskeletal or costochondritis. The EP testified that she knew she did not say “costochondritis” because it is not a term she used in her practice. “This was troubling,” Shuirman says. It supported the plaintiff’s argument that the EP had an obligation to specifically recommend that the PCP order a stress test, rather than just leave it to the PCP’s judgment.

Shuirman says discharging the low-risk chest pain patient requires:

  • good documentation of the evidence gathered by the EP and the decision-making that led to the conclusion that discharge is safe and appropriate;
  • documentation of the discussion with the patient or family about what has or has not been ruled out through the test results.

In cases in which the EP has consulted a PCP, hospitalist, or cardiologist about the propriety of discharge or whether admission is indicated, Shuirman says documenting all information conveyed and responses is vital.

“This will be most important in defending the position that ‘I could not get anyone to admit this low-risk patient,’ should a plaintiff’s expert in litigation be second-guessing the decision-making,” Shuirman adds.

REFERENCE

  1. Schriger DL, Menchine M, Wiechmann W, Carmelli G. Emergency physician risk estimates and admission decisions for chest pain: A web-based scenario study. Ann Emerg Med 2018; Apr 20. pii: S0196-0644(18)30221-X. doi: 10.1016/j.annemergmed.2018.03.003. [Epub ahead of print].

SOURCES

  • Kathleen M. Ryan, JD, Associate, Thorn Gershon Tymann and Bonanni, Albany, NY. Phone: (518) 464-6770. Email: kathleen.ryan@tglawyers.com.
  • Ryan M. Shuirman, JD, Partner, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6036. Email: rshuirman@ymwlaw.com.