Sparsely Charted History and Physical Complicates Med/Mal Defense
Thorough charting on the history and physical (H&P) of an ED patient can prove the standard of care was met. Still, the medical record often contains little more than a series of checkboxes.
“Lack of documentation may lead to questioning of the care that occurred,” says Bryan Baskin, DO, FACEP, associate quality improvement officer at the Cleveland Clinic’s Emergency Services Institute and assistant professor at Cleveland Clinic Lerner College of Medicine.
The ED chart should clearly show what was considered, and what was ruled out, during the visit. “This is primarily dictated by the H&P, which is where much of emergency medicine malpractice is alleged,” Baskin observes.
Thoroughness in this regard leads the EP to the appropriate testing, treatment, and disposition. A poorly documented H&P leads to the exact opposite. “That is where we have less optimal outcomes,” Baskin says. “When a bad outcome occurs, plaintiffs will point to a lack of H&P as to why said outcome occurred.”
David Sumner, JD, a Tucson, AZ, medical malpractice attorney, warns: “If you are over-relying upon electronic record templates for charting, you may be in trouble.”
An EP defendant can prevail in malpractice litigation even if the diagnosis turned out to be wrong — if the chart demonstrates sound decision-making. “Free texting, even in electronic records, is your ally,” Sumner stresses.
Many times, ED template charts are silent as to the EP’s rationale and differential diagnoses. “I exploit all charting omissions and irregularities at provider depositions,” Sumner reports.
The EP may offer a good reason for withholding aggressive IV fluid therapy in an acute pancreatitis patient. “The contraindication to otherwise appropriate treatment needs to be charted,” Sumner says.
For example, the patient might present with a history of congestive heart failure or chronic renal insufficiency. If this is not charted contemporaneously, Sumner warns “your after-the-fact explanation will sound self-serving at deposition three years later.”
Template charting makes it easy for plaintiff attorneys to paint a picture of subpar care. “They are a real time-saver, but also a real trap,” says Mark Spiro, MD, FACEP. “We have records that are incredibly long and complex. But it often misses what’s important.”
A recent malpractice case involved a man with a missed epidural abscess. The plaintiff attorney made a big issue of an incorrectly checked box. The checkbox indicated the presence of “abnormal vaginal discharge.”
“Malpractice did not occur because the emergency physician clicked the wrong box. But it did make it look like the ED care was sloppy,” says Spiro, chief medical officer of the Walnut Creek, CA-based The Mutual Risk Retention Group.
Sparse, thin documentation, even if accurate, is just as problematic. If all the ED chart shows for the H&P on a missed epidural abscess patient is a bunch of checkboxes, it does not give the defense anything to work with. “We have had a number of cases where it was just a templated exam,” Spiro recalls.
For instance, documentation on the neurological exam merely indicated “cranial nerves normal” and “no focal neural findings.” It did not say whether the patient could walk. “This has come up on more than one occasion when patients had spinal masses. It has led to really bad outcomes for patients, as well as really large settlements,” Spiro says.
The same issue arises with cardiac workups. Several cases of missed aortic dissection lacked any evidence in the ED chart indicating the EP checked for abnormal pulses. On this crucial point, the template offered little in the EP’s defense. There were only generic comments such as “cardiac exam normal” and “no murmurs or extra sounds.”
“There was no detail,” Spiro says. “It really doesn’t help us when the exam is so skimpy.” Considering that a lawsuit happens many months after the ED visit, it is doubtful an EP defendant recalls the patient or the specifics of the case. Thus, the EP who documented with checkboxes and no narrative is left with one unappealing option: To say it is their “usual and customary” practice to check pulses.
This was the EP’s testimony in a recent malpractice claim. The plaintiff attorney focused on the complete lack of documentation on assessment of pulses. “The attorney said, ‘You didn’t have two minutes to check this, and it would have saved the patient’s life? The patient’s life was not worth two minutes?’” Spiro recalls.
Conducting a careful neurological exam as part of the H&P, and documenting it just as carefully, gives the EP a strong defense in the event something is missed. “If there is a bad case, it can help the defense to show that you were thorough,” Spiro suggests.
Also, there is a more intangible benefit to this kind of narrative charting. “It forces the emergency physician to slow down for a moment to document the findings,” Spiro adds.
In some cases, taking a minute to write something about the evaluation may cause the EP to rethink the patient’s disposition entirely. Possibly, the back pain patient’s story is suggestive of a spinal mass or cauda equina syndrome, at least enough so to cause the EP to hold off on discharge or to order an additional test. “By documenting, you are also thinking about it, and then you look for it,” Spiro explains.
The patient might register an unexplained low-grade fever or mild tachycardia. “By putting a little bit of narrative in your medical decision-making that kind of describes what you are thinking, you could be preventing a devastating injury for the patient,” Spiro says.
Lack of clarity as to timing of when the evaluation occurred also is problematic for the defense. In one case, an intoxicated woman was brought to an ED, and the template charting indicated an inability to move her left side. “The patient was too uncooperative to examine in any but the most cursory manner,” Spiro says.
Later, the EP testified this worrisome finding was noted four hours after the patient’s arrival. The checkbox-style charting did not indicate one way or the other. This allowed the plaintiff attorney to argue the finding was there at the time the patient arrived.
This possibility made it difficult for the defense to refute the main allegation in the lawsuit, that delayed diagnosis of stroke caused the patient to miss the treatment window for tPA.
The EP continued to insist there was no such finding at the time of presentation, but there was nothing in the chart to prove it. The case settled out of court for an undisclosed amount. “In almost all of these cases, we do the right thing,” Spiro says. “We do the neuro or cardiac exam. We just don’t document it.”
The chart should clearly show what was considered, and what was ruled out, during the visit. Thoroughness in this regard leads the EP to the appropriate testing, treatment, and disposition.
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