The patient history, labs, and radiology — that was the extent of the information available to EPs historically. “But the EMR has changed the paradigm with so much information available at the click of a mouse,” says Kenneth N. Rashbaum, JD, a partner at New York City-based Barton LLP.
EPs argue they do not have time to hunt for every possible piece of information that could have prevented a bad outcome. But that is beside the point when lawyers get involved: “Every investigation and lawsuit is a retrospective analysis,” Rashbaum notes. The question for the EP becomes: Will a grieving family, state regulator, or jury be sympathetic to the defense that the information was available — but there was simply no time to read it?
“A jury is going to expect a physician to obtain any relevant information, especially with the widespread utilization of EMRs,” says David S. Waxman, JD, an attorney in the Chicago office of Saul Ewing Arnstein & Lehr.
Critical information might be hiding in plain sight — the hospital’s own EMR. Modules used by pathology or radiology are not always easily accessible, but ED providers should not expect a jury to be too sympathetic to this dilemma.
According to Waxman, “Different systems that do not speak with each other will not present an adequate justification” if someone is harmed just because an abnormal test result was tough to view.
Unlike in the primary care setting, the ED is “the ultimate focused visit. Patients come with a very specific problem, and that’s the focus of the visit,” says Frederick M. Cummings, JD, an attorney in the Phoenix office of Dickinson Wright. Regardless, failure to obtain relevant information from outside sources still can be a problem, legally speaking.
“Where it becomes dangerous for the ED practitioner is if in your EMR you have months or years of the patient presenting with progression toward a serious disease, and nobody’s put it together because they haven’t gone back,” Cummings says. This might be the case with a mental health patient who each time presents with increasingly serious concerns. “If they refuse treatment, there’s not much more you could do. But if you had seen the progression of the condition, you probably could have demonstrated they were a danger to themselves or others, and could have gotten court-ordered treatment,” Cummings offers.
EPs’ likely response is that there was not enough time to search through previous visits or hospitalizations. “But that may not preclude the other side from using the information in a way that can be harmful to you,” Cummings cautions.
It is unlikely that a jury would hold an EP accountable for reviewing a patient’s entire medical history. They would expect the EP to contact another provider when appropriate. When a patient presents with a surgical complication, Cummings says “the first call [the EP] makes is to the surgeon. The same issue exists for any other condition.”
The relevant question is: Is there a reasonable chance that the EP could get information from that practitioner that could assist in evaluating a patient’s emergency medical condition? “Then, yes, you’d better call,” Cummings offers.
The EP’s decision-making will be judged on “what they knew or should have known,” Waxman notes. If the EP learns that the patient sought care elsewhere previously, whether at a physician’s office or another ED, it might be advisable to contact that provider. “Those efforts, if contemporaneously documented, should help to insulate that ED from any subsequent criticism,” Waxman adds.
Failure to consult with a previous provider became an issue in a recent malpractice claim. The case involved a pregnant patient with asthma whose OB/GYN sent her to the ED. A decision was made to discharge the patient without contacting the OB/GYN. At deposition, the EP was asked, “Shouldn’t you have included the OB/GYN in the decision-making?”
The ED chart was unclear as to whether ED providers were even aware the OB/GYN had sent the patient. “If you are aware a patient was sent in by a physician for a specific concern and then proceed to make a decision without their input, you are putting yourself singularly on the line,” warns Marc J. Farraye, MD, FAAEM, president of FarrayEMed Emergency Medicine Services in St. Augustine, FL.
Questions regarding the progression of the symptoms or condition, imaging or test results, variation in history, or assessment of pain complaints all could be reasons to reach out.
“If there is information that can be accessed by the ED in the normal course of business that can either help the patient or prevent injury to the patient, failure to obtain and use that information will subject the ED to professional criticism,” Waxman explains.
Patient privacy regulations may pose a barrier to the flow of information between providers. If so, “it is imperative that the ED promptly employ the assistance of risk management, medical records, or hospital counsel in allowing for an appropriate transfer of information,” Waxman suggests.
Failure to access information arises often in cases with multiple ED visits. “It often appears as though the ED providers recognized that the patient had been evaluated for the same problem previously. Yet their treatment plan didn’t change,” Farraye says.
A recent claim involved an elderly woman with abdominal pain who ended up experiencing infarcted bowel mesenteric ischemia and dying of complications.
“Each time she came to the ED, she got basically the same workup she got the prior time. They just kept ordering the same thing and coming up with the same lack of results,” Farraye reports.
The plaintiff attorneys alleged that had the ED providers ordered a CT angiogram of the abdomen, it could have presented the patient from losing her bowel and suffering complications. Further, plaintiff attorneys alleged the woman’s risk factors (hypertension, current smoker, and high cholesterol) should have made infarcted bowel mesenteric ischemia part of the differential.
The case underscores the importance of expanding the differential diagnosis when a patient returns to the ED. “That is a concept I see over and over again in these cases,” Farraye says. “The differential doesn’t change despite the fact that it ought to.”
In several other malpractice cases reviewed by Farraye, the triage nurse noted prior ED visits, yet this information was not mentioned at all in the EP’s documentation. “The emergency physicians are left trying to explain, with difficulty, why they don’t appear to be aware of these prior visits,” Farraye says.
If a piece of information is contained within the ED’s EMR and is “just a click away,” says Farraye, “the EP is left in a precarious position if they state they were unaware of those records.”
One asthma patient had returned three times to the same ED. Each time, the patient was discharged on the same therapy. The previous visits were noted in the ED chart. “But it appeared to be forgotten when it came to the decision-making,” Farraye recalls. “In my experience, most such cases seem to settle.”