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Somewhere in the ED chart, somebody recommends involvement of a particular specialist, or that a specific study should be conducted. When this kind of recommendation is documented but never acted on, it can mean legal trouble for the EP.
“This is a really common problem,” says John Burton, MD, chair of the Carilion Clinic’s department of emergency medicine in Roanoke, VA.
There are two common scenarios where this arises during litigation:
• Hospitalists and other consultants who round on ED patients recommend involving other specialties in the patient’s care. Hospitalists are used to handling consults on admitted patients. “It’s very common for them to routinely involve a lot of other specialists during the course of a patient’s multiday care,” observes Burton, adding that hospitalists apply that same mindset to the ED. “The problem is the ED is not an inpatient unit. We don’t have three days. We are very disposition-focused, and the clock is ticking.”
The EP is under pressure from the patient and the system to make decisions in the moment that matter at that point in time. “That means we’re picking and choosing which tests to order and which consultants to involve,” Burton notes.
In contrast, hospitalists are used to an environment where they have multiple days to collect as many consultations as they believe are needed. In that setting, says Burton, “utilization of resources is not as consequential.”
The problem is that during litigation, plaintiffs can point to the fact that another provider believed strongly enough that a specialist should be involved to document it in the chart. “Hospitalists’ documented recommendations sometimes cannot be reasonably achieved in the ED environment,” Burton laments.
• Radiology reports frequently include recommendations for additional studies. This is in part due to more claims naming radiology, Burton says. “That’s causing them to put in more detailed recommendations. They feel like they need to spread their risk a little bit.”
The burden of acting on the radiology recommendations falls on the EP who ordered the test. “As long as there are no credibility issues around the quality of their interpretation, the radiologists are pretty much free and clear,” Burton says.
If a bad outcome happens, and the EP ignored the recommendation to collect another consult or study, “this becomes a tremendous opportunity for the defense,” Burton says.
For instance, a typical radiologist report might state: “Plain film of the knee demonstrates an effusion and soft tissue swelling. An MRI of the knee would give further clarification.” The plaintiff can argue that the standard of care required the EP to obtain the MRI that radiology recommended.
Leonard Berlin, MD, FACR, has never seen a radiology report include a recommendation that asks a certain type of specialist to evaluate the patient.
“I have not seen, and am opposed to, reports in which the interpreting radiologist suggests that the patient should be sent to a specific physician-specialist. If it happens, it’s certainly beyond what a radiologist should do,” says Berlin, a professor of radiology at Rush University and the University of Illinois, both in Chicago, and author of Malpractice Issues in Radiology.
However, radiologists often suggest conducting an additional study. A patient may undergo an X-ray of the spine to rule out a slipped disk, and the radiologist sees something questionable on the kidney. The radiology report notes, appropriately, that a CT scan or MRI should be considered. “But to say a renal surgeon should be consulted, that’s just nonsense,” Berlin argues.
If the ordering EP does not act on a radiology recommendation for an additional study, it could cause legal problems for the EP. “It’s a question of how it’s phrased,” Berlin explains.
The report should use language such as “An MRI should be considered for further evaluation.”
“Those are nice, innocent words. On the other hand, if the report says an MRI should be done, that is too strong,” Berlin cautions. It should be clear to anyone reading the report that the radiologist is only making a suggestion. “We are not here to tell physicians what to do. We are here to make suggestions for additional studies to the best of our ability,” Berlin stresses.
Occasionally, an attorney defending a radiologist contacts Berlin. The plaintiff may be claiming that the bad outcome happened because the radiologist failed to recommend an additional study. Another issue that sometimes arises during litigation involves verbal discussions between the ordering EP and radiologist about a certain patient. These informal conversations often go undocumented.
“The problem is, if it’s not written down and then later something bad happens, they are going to disagree about what they said to each other,” Berlin says.
Both the EP and radiologist should chart what was said. “If the emergency physician and radiologist want to discuss the case, why not? But when they walk away, they should make a note so there’s no question about what somebody allegedly said,” Berlin recommends.
Faced with a documented recommendation for consults or studies that may or may not be appropriate, the EP confronts a tricky risk management challenge. “You have to carefully choose how to approach that documentation, just in case there are any untoward events in the future,” Burton says.
Some verbal communication should happen before anything is documented in the first place. For instance, a radiologist might say to the EP: “I think this patient has a maxillary sinus fracture and probably needs to see a maxillofacial surgeon.” The EP might note that none are available in the hospital and that, in fact, there is only one plastic surgeon in the community available to see such patients. The radiologist could then document a more realistic recommendation.
It also gives the EP a chance to clarify whether the consultant believes the test or consult should be conducted emergently. “This might change the notes entered in the future,” Burton offers.
Consultants should become accustomed to calling the EP before they put that kind of recommendation in the chart. “Optimally, there would be some verbal dialogue first to compare perspectives on it. But certainly, radiologists don’t have time to make all those calls,” Burton acknowledges.
Likewise, when a consultant comes to the ED to see a patient, that consultant would give the EP a quick verbal impression immediately afterward. This allows for some back-and-forth if the consultant is planning to document something that is wildly unrealistic or that the EP believes is inappropriate for the patient. “It only takes a few seconds. But in many circumstances, they are too busy to do it, so the consultant writes out the note without discussing it first,” Burton says.
Sometimes, the note ends up full of recommendations for various consults that never happen. “That can get the emergency physician into trouble downstream,” Burton warns.
EPs will not always agree with someone else’s suggestion to involve a consultant in their patient’s care. They do not always have time to document their reasoning for why a certain recommendation, in their clinical judgment, is not appropriate. “It’s problematic for the EP because they are trying to get dispositions and decisions made,” Burton explains.
EPs may believe the consult is not necessary at all or is of limited use to their patient at that moment. If the EP chooses not to collect a consult that clearly was recommended, says Burton, “EPs really need to contemplate the consequences.”
Some EPs, fearful of liability, blindly follow the recommendations. This can lead to unnecessary care and wasted resources. A more reasonable approach, according to Burton, is to independently choose when to involve consultants based on clinical judgment.
“If the consult is not emergent, the EP could take a middle ground by including the recommendation in discharge instructions,” Burton explains. The patient would be instructed to obtain the consult on an outpatient basis in a reasonable amount of time.
An example would be a pulmonary nodule noted on a radiology report for a CT scan ordered to rule out pulmonary embolism.
“There should be a system in place to inform the patient,” Burton says. “But there is no reason to consult a pulmonologist immediately to come see the patient.”
It also is reasonable for EPs to document the lack of an emergent nature of a recommended consult. For instance, maxillary fractures and most orbital fractures do not require a specialist to come in immediately to see the patient in the department.
“These patients can be taken care of in follow-up, with notification to the specialist receiving the referral depending upon local practice preferences,” Burton says. ED documentation should include a note that the patient was referred for specialist consultation on an outpatient basis, considering the lack of emergent management indication.
Further, note that a phone consultation was made with the specialist, with a visual or verbal description of the findings. Also, indicate that the consultant agreed this was a non-emergent case that could be managed on an outpatient basis.
For instance, someone might recommend referral to an orthopedist given a suspicion for a ligamentous injury of the knee or shoulder. In this case, says Burton, “the emergency physician will then document that this was made as an outpatient referral with documentation of an intact neurovascular examination and no indication for an emergent consultation.”
Overly specific documentation on why someone is not obtaining a particular recommended consult could make the EP appear overly defensive. “In hindsight, it appears as though it was an obvious decision you should have made,” Burton warns. “We see this around procedures.”
An ED chart might read, “I don’t think the patient needs a lumbar puncture because they don’t have a fever and there is no vomiting.” Years later, when the EP is named in a lawsuit alleging that a lumbar puncture should have been performed, the charting looks suspicious.
“You look at the record and say, ‘Why didn’t the EP just do the lumbar puncture?’ It seems as though they were trying to talk themselves out of doing something they knew they needed to do,” Burton says.
On the other hand, failing to mention the recommended consult also can backfire. It may look as though the EP never even considered the consult that did not happen. “Unfortunately, there is no hard and fast rule on how to reduce risks,” Burton says. “EPs need to treat each scenario independently, and proceed with caution.”
Financial Disclosure: Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), is a consultant for Ethicon USA and Mobile Instrument Service and Repair. The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jill Drachenberg (Editor), Leslie Coplin (Editorial Group Manager), and Amy M. Johnson, MSN, RN, CPN (Accreditations Manager).