Legal Problems if ED Overlooks Critical Lab Finding
Critical lab results are missed because ED patients are discharged already. Other times, results are never communicated to the EP who is caring for the patient. “Reasons include ED overcrowding, ineffective physician communication between leaving and oncoming physicians, or protocols allowing for triage ordering of testing the treating physician was not aware of,” says Edward Monico, MD, JD, assistant professor in the department of emergency medicine at Yale University School of Medicine.
Despite the importance of critical values in ED care and requirements that hospitals provide for the identification and timely communication of critical results, there is little standardization of procedures.1,2
“The lack of such standardized procedures has resulted in treatment delays and injury to patients,” Monico says. Regardless of the reason, a malpractice lawsuit is likely. “Plaintiffs will have to demonstrate a causal relationship between the missed lab value and the harm realized,” Monico adds.
Chris Messerly, JD, has handled many sepsis cases over the past three decades. A 2017 case involving an overlooked critical lab value turned out to be the largest wrongful death verdict in Minnesota history. The jury awarded $20.6 million at trial.3 The highly publicized case involved the death of a woman a few days after she delivered her first child. She died as the result of a missed sepsis diagnosis from endometritis.
“The nurse practitioner [NP] in the ED at a major hospital simply disregarded a key lab finding,” says Messerly, a partner at Minneapolis-based Robins Kaplan.
The patient’s platelets at presentation were 50. The lab report flagged the finding as low. However, when the NP spoke on the phone with the on-call OB/GYN, the NP failed to comment on the platelets. Also, the NP did not tell the patient and her husband of the dangerously low levels. As a result, the EP agreed with the NP’s conclusion that the patient simply had a urinary tract infection and could be discharged safely.
“By the time the patient returned to the same ED many hours later, it was too late, despite an emergency hysterectomy,” Messerly says.
The case underscores the importance of ED providers carefully reading lab reports and acting on them. “While that states the obvious, sadly, it does not always happen,” Messerly laments. The defense team admitted the NP’s negligence but claimed that it played no role in the patient’s death. “They claimed it was a rare case of necrotizing fasciitis, which the jury did not buy,” Messerly reports.
At trial, the nurse practitioner testified that she told the patient and her husband about the alarmingly abnormal platelet count. “I don’t think that anyone believed she was telling the truth, including the jurors,” Messerly says. EPs are responsible for reviewing any tests they order. “If another provider placed orders, the case becomes murky,” says Catherine Vretta, MD, MPH, an EP at Ascension St. John Hospital in Detroit.
Certain EDs have standing orders for specific complaints, such as troponin orders in chest pain patients. “If the facility allows ED nurses to place orders, ideally, this should be communicated to the physician of record,” Vretta says.
Some ED patients have left the department already by the time culture results are available. In this case, says Vretta, EPs should “be prepared to disposition the patient without these results.” There must be a plan in place for evaluation of the culture results. For patients who are admitted, it is reasonable for EPs to expect that the physician managing the patient’s care in the hospital would be responsible for reviewing the culture results when they become available. “The case is more problematic if the patient is being discharged without cultures resulted,” Vretta notes.
Certain ED policies state that a designated person (a quality control coordinator, nurse, or EP) follows up on all cultures obtained in the ED on discharged patients. “If no such policy exists, the physician of record would be responsible for these results,” Vretta cautions.
Sometimes, EPs handle the issue by contacting the patient’s primary care physician or specialty physician to arrange outpatient follow-up on the test results. If so, Vretta cautions that the EP should only discharge the patient with results pending if these test results would not change the immediate care of the patient. “The emergency physician should also carefully document the conversation with the physician to whom the patient’s care will be followed up by,” she adds.
By the time a malpractice lawsuit is underway, everyone knows the bad outcome happened. Typically, plaintiff experts look for anything the EP could have done to prevent it, and then they argue that it was the standard of care to do so. “That is very difficult to get around. You are basically working backward,” says Joan Cerniglia-Lowensen, JD, an attorney at Pessin Katz Law in Towson, MD.
The defense position is that the EP can be judged only by what was reasonable at the point the patient presented. The plaintiff’s side counters that in light of the bad outcome, it clearly was not enough. Some plaintiff experts have testified that instead of calling a patient when critical test results came back, that law enforcement should have been sent to the patient’s house. In hindsight, most jurors would agree; after all, a person’s life was at stake.
“But if nobody is there, then what? Does it increase the provider’s obligation?” Cerniglia-Lowensen asks. “You have to look prospectively at the case, not retrospectively.”
This issue came up during malpractice litigation involving an ED patient who was sent home before an elevated D-dimer result returned. At the time of discharge, the EP believed it was safe to send the patient home. As soon as the result came back, ED providers attempted to contact the patient, who had already suffered a stroke.
The plaintiff attorney argued that the patient was prematurely discharged from the ED. Further, the plaintiff attorney argued the ED failed to communicate the critical value in a timely manner.
The plaintiff attorney focused on the fact that stroke must have been on the EP’s differential, or the EP would not have ordered the D-dimer. The ED chart lacked any explanation of why the EP thought stroke was unlikely enough to discharge the patient. With differing expert opinions on whether the bad outcome could have been prevented if the patient had been in the hospital at the time it occurred, the case settled out of court.
Even consulting with specialists will not necessarily insulate the EP from liability. “It might bring others into the case. But what they’ll say is, ‘In the ED, you had the first opportunity to intervene for this patient,’” says Cerniglia-Lowensen. What if a critical lab finding is simply missed, and the ED patient is discharged? This is another dangerous situation.
“This can occur when incomplete labs are resulted,” Vretta notes. For example, an electrolyte panel is ordered and is partially resulted without a potassium level. The EP notes that none of the results are abnormal, so everything looks fine. It is not apparent that the potassium level is missing.
“A patient could inadvertently be discharged with a critically dangerous lab value and have a potentially disastrous outcome,” Vretta says. “Ultimately, the emergency physician would likely be held responsible.”
It helps avoid confusion if lab results are designated as “pending” rather than simply absent from the partially returned results. This could allow the ordering EP to avoid a premature discharge.
“The EP should confirm that all orders were completed and resulted prior to any discharge,” Vretta advises.
REFERENCES
- The Joint Commission. National Patient Safety Goals. NPSG2 communication among caregivers. 2009 Standards Interpretations FAQs. Available at: http://bit.ly/2UR9M81. Accessed May 2, 2019.
- Pennsylvania Patient Safety Authority. Safe patient outcomes occur with timely, standardized communication of critical values. Pa Patient Saf Advis 2009;6:93-97.
- Bermingham v. Eid, No. 27-CV-16-1269 (Minnesota District Court, Hennepin County. Aug. 28, 2017).
Critical lab results are missed because ED patients are discharged already. Other times, results are never communicated to the EP who is caring for the patient. Despite the importance of critical values in ED care and requirements that hospitals provide for the identification and timely communication of critical results, there is little standardization of procedures.
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