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Emergency physicians (EPs) are the specialty most likely to be sued in acute stroke cases, according to a recent analysis.1 One-third of malpractice claims named EPs. In contrast, neurologists were named in just 17% of claims.
“We were interested in looking at malpractice litigation related to acute stroke in general to categorize the full medicolegal risk profile in treating these patients,” says Jack Haslett, BS, the study’s lead author and a clinical research coordinator at Mount Sinai Hospital’s cerebrovascular neurosurgery department.
Haslett and colleagues found 56% of lawsuits ended with no payout. More than one-quarter of cases settled out of court, with an average payout of about $1.8 million. Of the 17% of cases that went to court and resulted in a verdict for the plaintiff, there was an average payout of around $9.7 million.
Cases were categorized into two groups: 26 malpractice lawsuits were related to intracranial hemorrhage, and 246 malpractice lawsuits involved acute management of ischemic stroke. Of this group, 71 cases alleged failure to treat with tPA. Seven cases alleged a failure to treat, or to timely treat, with thrombectomy.
Researchers were especially interested in how many lawsuits included this specific allegation for emergent large vessel occlusion (ELVO). The results of several recent studies suggest that for appropriate patients, thrombectomy makes regaining functional independence more likely.2 Thus, there was plenty of evidence to support plaintiff experts’ testimony that the standard of care was not met by EPs who failed to obtain this intervention.
The problem is the relevant studies were not conducted until after the patients’ bad outcome occurred. “It was very surprising to see several cases alleging a failure to perform thrombectomy for strokes that occurred prior to evidence of its efficacy being published,” Haslett offers.
Seven plaintiffs suffered strokes before 2015, the year the first studies were published on the efficacy of thrombectomy. Three cases resulted in defense verdicts with no payout, one settled for an undisclosed amount, and one settled after mediation for $5.3 million.
Two cases went to trial, with verdicts for the plaintiff for $3.7 million and $38.6 million, respectively. The large verdicts were not based solely on failure to perform thrombectomy; there were allegations of failure to timely diagnose or transfer included in those cases.
“Nonetheless, the fact that this allegation was included demonstrates that adhering to medical evidence is not the only factor in successful medical malpractice litigation,” Haslett observes. There were some other issues that arose repeatedly in stroke malpractice cases naming EPs:
• Atypical presentations were seen commonly. Stroke diagnosis was delayed in patients who presented with symptoms such as headache, dizziness, or personality changes.
“In one case, a patient was discharged from the ED with the doctor believing he was intoxicated when he was actually suffering a stroke,” Haslett recalls.
• EPs failed to consult with a neurologist or neurosurgeon, even though they suspected a patient might be experiencing a stroke. This allegation was made in 22% of the cases. It was an underlying issue in even more lawsuits. “A number of other cases without this explicit allegation may have been avoided had a neurologist been timely involved,” Haslett explains.
Some patients with stroke-like symptoms never were referred to a specialist. Others did receive a consult eventually, but not soon enough to prevent a poor outcome. In other cases, the stroke was diagnosed in the ED timely and treated appropriately. The problem in these cases was the EP failed to involve a specialist when treatment decisions were made involving tPA, thrombectomy, or surgical options.
• Only one case alleged complications from tPA administration. In this case, the patient suffered a hemorrhage. “The lawsuit alleged that doctors failed to adhere to protocols. The case was dismissed by summary judgment,” Haslett reports.
In contrast, there were 71 cases alleging failure to treat with tPA. “There has been some suggestion that doctors have been reluctant to use tPA for ischemic stroke for fear of medicolegal risk due to the risk of hemorrhage,” Haslett notes.
However, the analysis by Haslett and colleagues points to far higher legal risks if tPA is not administered to patients. Previous studies revealed similar findings.3
Sometimes, EPs carefully consider tPA or thrombectomy, but ultimately decide against these interventions. In these cases, says Haslett, “clear documentation of the reason for deciding against treatment may be beneficial in avoiding or defending against medical malpractice lawsuits.”
For example, an EP might chart tPA was not administered because the patient was known conclusively to be beyond the time window for treatment. “This should provide good defense to malpractice related to a failure to treat with tPA,” Haslett adds.
• Delay in transfer was a common allegation. Most of these cases occurred at smaller community EDs that failed to transfer the patient to either a primary or comprehensive stroke center. “Given the expanded time window that patients may now be eligible for thrombectomy, this is likely to become an increasing issue,” Haslett suggests.
Even some late-presenting ELVO patients are eligible for treatment. This means there is a larger pool of potential plaintiffs who could plausibly argue that a speedy transfer would have prevented a terrible outcome.
“Well-understood policies to allow for the timely transfer of patients presenting with stroke to the appropriate primary or comprehensive stroke centers may reduce the risk of litigation,” Haslett offers.
• In 29% of cases, the patient was discharged from the ED, and suffered a stroke shortly after. The malpractice claims alleged the EP failed to diagnose the stroke. In most of these cases, the defense argued the patient did not exhibit stroke symptoms at the time of the ED visit. “Consultation with a neurologist or transfer may have been beneficial in select cases,” Haslett says.
Stroke patients clearly are high-risk cases for EPs, says Laura Pimentel, MD, a clinical associate professor in the department of emergency medicine at University of Maryland. “Failure to perform and document a thorough history, neurological examination, and [National Institutes of Health Stroke Scale] score are common pitfalls,” Pimentel cautions.
The appropriate imaging studies are not always ordered. “The noncontrast head CT is an insensitive test for acute ischemic infarcts,” Pimentel notes. “Contrast CT and MRI or MRA [magnetic resonance angiography] are superior, if available.”
As the study’s findings showed, early diagnosis of large vessel occlusion is particularly important. This is because of the efficacy of thrombectomy in preventing severe disability, Pimentel notes. “Imaging the neck is very important for patients with suspected [transient ischemic attack] or stroke.”
CT angiography (CTA), carotid ultrasound, and MRA are all acceptable modalities. “Failure to consider cervical artery dissection or underlying cardiac disease as the etiology of stroke symptoms in younger patients is common,” Pimentel adds.
Adam Hennessey, DO, an EP at Our Lady of Lourdes Medical Center in Camden, NJ, has reviewed multiple malpractice claims alleging missed stroke. He says a specific statement in the chart on whether the patient is a candidate for tPA can help the defense. “Most charts make reference to tPA since it is the accepted standard of care. But their reasoning may not be specific enough,” Hennessey says.
To be clear on this point, terms such as “time of onset,” “last known normal,” or specific exclusion criteria are helpful. Other helpful chart notes include:
Late-presenting patients still might be a candidate for interventional radiology or neurosurgery. “Just because somebody is outside the window for thrombolytics doesn’t mean you can just stop at that point,” Hennessey explains. “You still have to be aggressive.”
Additionally, the EP needs to document that he or she considered stroke as a possibility. Some failure-to-diagnose claims involve patients with posterior circulation pathology presenting with atypical symptoms. “A very detailed physical examination can sometimes be even more helpful than imaging studies in those,” Hennessey says, noting such strokes can be discounted as something benign if someone reports only lightheadedness or headache. “Those are the patients with higher malpractice risks than those who suddenly can’t move their right side with facial droop.”
When a stroke diagnosis is even remotely possible, Hennessey suggests using the NIH Stroke Scale. “It is not a validated scale for posterior circulation strokes,” Hennessey notes. However, even if the patient’s score is zero, “at least you have documented that stroke is on the differential.”
Lastly, EPs should document any relevant discussions with consultants. In some cases, the EP may believe interventional therapy is appropriate, but the neurologist does not agree. In this situation, the chart should include the specific reason why the patient is not a candidate.
“Since we are not the procedural experts for thrombectomy or focused thrombolysis, a thorough explanation of the specialist’s thought process should be fairly protective for the EP,” Hennessey says.
Financial Disclosure: Kay Ball, PhD, RN, CNOR, CMLSO, FAAN (Nurse Planner), is on the speakers bureau for AORN and Ethicon USA and is a consultant for 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).