A man with severe leg pain was diagnosed with sciatica and discharged from an ED. Unfortunately, this occurred without a thorough evaluation that would have revealed the correct diagnosis.

“Six hours later, he presented to another ED with total femoral artery occlusion,” says John Davenport, MD, JD, physician risk manager of a California-based HMO. The patient lost his leg and later died due to surgical complications.

The initial ED chart documented a full physical, including normal and full leg pulses. The patient’s wife, a nurse, was present at the evaluation. She stated at deposition that most of the evaluation never happened. The jury agreed.

“Expert testimony convinced the jury that, given the severe arterial occlusion, the finding of full and equal pulses was impossible, and that the note had been ‘templated’ into the chart,” Davenport says. The parties settled the case for $550,000.

The evaluation note was entered close in time to the ED visit, although not necessarily concurrently. “The bigger issue was the credibility of the note documenting items that were not actually done,” Davenport says. “This is a huge risk of a template note.” This surprisingly common scenario greatly complicates the defense of any ED malpractice claim. “First, it puts the EP’s veracity at issue. Secondly, it calls into question how careful the EP is,” says Frederick M. Cummings, JD, an attorney in the Phoenix office of Dickinson Wright.

Inadvertent checking of items is one of the legal risks of EMRs. “Even though it was meant to be a time-saving device for practitioners to include more information, practitioners often get lulled into a false sense of security and don’t always pay as much attention as they should,” Cummings offers.

This complicates defense of ED claims in several ways. One common scenario: Someone checks a box stating that the patient’s current medications were reviewed. It turns out the patient was taking a medication that was contraindicated to something that was administered in the ED.

“Now, you’re in a he said/she said situation. The patient will say, ‘I told them all the medications I was on,’ but there’s no evidence of it,” Cummings says.

Cummings sees a related problem frequently: The EP fails to check off a box he or she should have. “You want to make sure the record indicates you’ve done everything according to what the patient’s condition requires,” he advises. If the EMR dropdown box says the EP should check specific systems, and the EP does not do so, that EP is now in a difficult position. This sometimes happens with patients who present with a possible infection. If the box indicating temperature is not checked, the Systemic Inflammatory Response Syndrome protocol is not pulled up. This means all the required interventions are not necessarily performed.

“Now, you have a case of missed sepsis,” Cummings notes. “I have seen that too often.”

The best, and possibly only, response, at that point? Admit it was overlooked but that the EP’s “usual and customary” practice was to always perform the task.

“You can, in most jurisdictions, testify as to what you customarily would have done, even though you might not have a specific recollection of doing it,” Cummings says.

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