EXECUTIVE SUMMARY

Missing ECGs, mistimed troponin levels, and lack of cardiology consults help plaintiffs prevail in STEMI litigation. These factors help the ED defense:

  • Negative cardiac enzymes for patients discharged with a GI diagnosis;
  • Documentation on why STEMI appeared unlikely;
  • Cardiology input on indeterminate ECG findings.

When a plaintiff attorney’s expert reviews the ED medical records on a potential missed ST-elevation myocardial infarction (STEMI) case, certain “smoking guns” immediately become apparent. One is the absence of an ECG.

“ECGs are as ubiquitous as pregnancy tests in most EDs. But some missed MI [myocardial infarction] cases still center around allegations of failure to perform an ECG,” says Anna Berent, JD, claims counsel for Houston-based Western Litigation.

In one notable case, a 70-year-old man arrived at a rural ED with a fall injury, leg cramps, and back pain. The emergency physician’s (EP) differential included muscular skeletal conditions and hypotension, with the patient discharged after an unremarkable CT of the spine and pelvis. Hours later, the man returned to the ED unresponsive, and died shortly after. “The workup was incomplete, and the differential was too narrow,” Berent says. “No one quite could tell precisely what caused the patient’s death.”

No autopsy was performed. However, because of an administrative requirement by a state department of health, cardiac arrest was not accepted as the cause of death. Instead, it was reported as MI. This proved too difficult a hurdle for the ED defense team to overcome. “The plaintiff had the benefit of the doubt, not us,” Berent reports. “The fact that there was no cardiac workup really hurt us.”

Had there been an ECG, the defense would have known whether the plaintiff really could prove causation. Without the ECG, it was impossible to know one way or the other. “Whether it was an MI or not, the more important question was, ‘Is it a departure from the standard of care to not do an ECG?’” Berent explains.

ECGs are performed in EDs routinely, although with greater frequency at large academic medical centers than small community hospitals, Berent notes. Regardless, plaintiffs (and jurors) view ECGs as easy, inexpensive tests, similar to blood pressure or pregnancy tests. “Was an ECG done, and what did it show? That is the first thing plaintiff attorneys go to, especially if you have a slightly ambiguous case,” Berent says.

Since no ECG was performed on the 70-year-old patient, says Berent, “we were really trapped. A simple ECG could have made a difference in the outcome and the work-up.”

There are other issues that factor into a plaintiff attorney’s decision to pursue a missed STEMI case:

Whether cardiology was involved in interpreting an ambiguous ECG. Distinguishing an old MI from an evolving one can require expertise beyond the EP’s. “This equivocation, combined with an atypical presentation, may lead to judgment calls that could be the foundation of medical malpractice suits,” Berent warns.

In these types of lawsuits, the relationship between ED providers and cardiology becomes important. Berent explores these issues: What instructions did ED staff receive from the cardiology service? How is the overall relationship with the cardiologists? Are cardiology team members or on-call cardiologists responsive and approachable? Unfortunately, the opposite often is true. “Some cardiology services give ED staff a hard time about admissions and ECG interpretations that may be unwarranted in their opinion,” Berent says.

Knowledge of these dynamics can help the ED defense team prepare the EP for deposition. “At first, the EP might seem a little too brazen about interpreting the ECG. But then you realize the interplay between the two services in the hospital is not very friendly,” Berent explains. Addressing this problem can prevent future malpractice litigation. “It’s not that you are encouraging the emergency physician to skirt responsibility by blaming others, but to explore what can be done better,” Berent adds.

Ideally, cardiologists welcome EPs to seek their opinion on hard-to-read ECGs. Some cardiologists make themselves difficult to find or ask for multiple orders to be completed before they agree to evaluate the patient. If so, these cardiologists may find themselves codefendants in litigation. One recent malpractice case centered around the fact the cardiologist gave the EP a difficult time. The EP defendant had made several attempts to contact cardiology. Even when the cardiologist was finally reached, he did not visit the patient. Instead, he told the EP to perform a cardiac ultrasound, which was misinterpreted. In the resulting lawsuit, “everybody got named,” Berent notes.

In the end, jurors held the cardiologist, not the EP, responsible for the patient’s bad outcome. The defense team asked jurors to explain their reasoning. “They were unequivocal about the fact that the cardiologist was the specialist, and that he should have taken charge and come to see the patient,” Berent says.

Whether cardiac enzyme testing was performed appropriately. “In my experience, cardiac enzyme testing has been one of the most important factors in whether a plaintiff pursues a missed MI case,” says L. Evan Cline, JD, an attorney at Huff Powell & Bailey in Atlanta.

It is not enough for EPs to order the appropriate testing; they also need to make sure that repeat testing is conducted at the correct intervals. The ED chart may show that the second or third troponin was drawn at less than 90 minutes or significantly past 90 minutes. If so, says Cline, “plaintiff’s attorneys are quicker to take the case.”

Whether discharge with a gastrointestinal (GI) diagnosis made sense at the time of the ED visit. Negative cardiac enzyme testing is “incredibly helpful” in defending cases in which patients presented with chest pain but were discharged with a GI diagnosis, Cline says. “We often see this in missed STEMI cases.”

Beth Norton, JD, an attorney in the Richmond office of Hancock, Daniel & Johnson, has defended missed STEMI cases in which the plaintiff was misdiagnosed with a GI condition such as reflux esophagitis. Most patients presented with a GI history or GI complaints.

“EPs dismiss MI as a likely diagnosis because the patient’s pain was relieved, partially or totally, following the administration of a ‘GI cocktail,’” Norton explains.

She recommends that ED providers avoid using the “GI cocktail” as a diagnostic tool, particularly for patients with significant risk factors (hypertension, heavy smoking, diabetes, and/or a significant family history of heart disease).

Further, Norton says, it is important to document the reason (based on objective information such as ECG and cardiac enzyme test results) why the EP believed MI was unlikely, particularly when chest pain is present and persistent.

When in doubt, Norton recommends consulting a cardiologist early in the clinical workup, particularly when there are indeterminate ECG findings. When possible, EPs should obtain more than one ECG before dismissing the likelihood of an MI (and always obtain an old ECG, if available).

Norton says to document the physician’s reasoning for declining to consult a cardiologist when chest pain is present or when ECG or cardiac enzyme testing produces anything other than normal results. Do not dismiss MI as a likely diagnosis based primarily on the fact that the patient is young, especially if there are other significant risk factors.

“Do not rule out MI as a possible diagnosis based on a recent negative stress test,” Norton adds.

Missed STEMI Cases By the Numbers

The CRICO Comparative Benchmarking System (a national malpractice database of the Risk Management Foundation of the Harvard Medical Institutions) includes 28,000 cases from 2013 to 2017 with in-depth clinical coding. Of the 2,558 cases involving the ED setting:

  • Total incurred losses (this includes reserves on open cases and payments on closed cases) were $697 million. The average total incurred loss for an ED case was $272,000.
  • A total of 139 ED cases involved cardiac events, with total incurred losses of $53 million. The average total incurred loss for each of these cases was $384,000.
  • In the 2,558 ED cases, the most prevalent case types included diagnosis-related (1,361) and medical treatment (714) allegations.
  • Total incurred losses of diagnostic ED cases are $471 million, with an average of $346,000 for each case. Sixty-one cases involved missed MI, with an average incurred loss per case of $396,000. In contrast, the total incurred losses of the 714 medical treatment-related ED cases were $127 million, with an average total incurred loss per case of $178,000.