An emergency physician (EP) defendant’s documentation — specifically, a checked box indicating a baby’s lungs were clear — was hotly debated during malpractice litigation. The problem was another box also was checked — one indicating the patient, a six-week-old infant, was “speaking in complete sentences.”
“When the infant died unexpectedly a few days later, the error became significant,” says Ashley Dobbin Calkins, JD, an attorney in the Richmond, VA, office of Hancock Daniel.
The status of the patient’s lungs at the time of the emergency department (ED) visit became a central issue in the ensuing litigation. “While everyone could agree the selection was a mistake, it called into question the veracity of other selections in the EMR [electronic medical record], especially when attempting to assess potential causes of death,” Calkins says.
The mistake even called into question whether a physical exam had been performed at all. “It made the ED providers look sloppy. It made both their care and the record seem unreliable,” Calkins reports.
Andy Walker, MD, FAAEM, has seen two types of discrepancies cause major problems for the ED defense during malpractice litigation. One is a discrepancy between the EP’s documentation and nursing documentation.
“The other is between the EP and obvious reality,” says Walker, a Signal Mountain, TN-based EP who offers legal consulting services for the defense of EPs.
One ED patient with amyotrophic lateral sclerosis was ventilator-dependent and underwent a tracheostomy. Yet the EP checked a box indicating “normal motor functions.”
“Either he never performed the medical exam, and everything else in the medical record can’t be believed, or he clicked the wrong box out of habit,” Walker says.
In this particular case, the glaring error did not devastate the EP’s defense. At trial, the EP defendant was calm and matter-of-fact about how it happened.
“The EP said, ‘I just clicked the wrong box.’ Even the plaintiff attorney accepted it, and moved on,” Walker says. Eventually, the EP was dismissed from the case.
The real issue in this case was an airway problem, one the EP addressed properly. “He clearly knew the patient could not move and could not breathe on his own. There was no doubt about that,” Walker notes.
If it was not so clear, the wrongly checked box could have caused major problems for the defense. “That kind of discrepancy can discredit everything else in the ED record,” Walker cautions.
One defense tactic is to elucidate just how common checking the wrong box really is. “If EPs hover their cursor over a text box a couple of millimeters off, they’re going to check off the exact opposite of what they intended to document,” Walker observes.
The defense attorney can ask, ‘Has this ever happened to you?’ The defense expert can answer truthfully, “Practically every day. It’s an easy mistake to make.”
Even so, EP defendants will face questions about their responsibility to ensure accuracy in the ED medical record. “Plaintiffs’ lawyers are fond of pointing out that the hospital record is likely to be relied upon by subsequent treating providers who are assuming the record to be correct,” says Jason Newton, JD, associate general counsel and senior vice president of claims at Raleigh, NC-based Curi.
Further legal complications can happen if subsequent treating physicians relied on an incorrect entry to the patient’s detriment. If an ED nurse inaccurately recorded a patient’s reported pain to be at a 10/10 (when it actually was reported to be a 2/10), it might seem unlikely to cause any serious issues. Yet if the patient suddenly reports pain at 10/10 at some point after arriving on the floor, the mistake could produce devastating consequences.
“A subsequent provider would not necessarily realize the patient’s condition had changed significantly and could require urgent intervention,” Calkins explains.
The EP and subsequent providers all could end up as defendants in the same lawsuit. If so, it will not take long for finger-pointing to complicate the case. “The subsequent treaters may claim their actions would have been different, and created a better outcome for the patient, if only the ED provider’s note had been accurate,” Newton offers. Even if the erroneous information made no difference in the outcome, plaintiffs can use it to bolster their claim. Attorneys can argue the sloppiness carried over into clinical care. “It taints the perception of what level of care the provider gave to that patient. It makes defending the clinical care that much more difficult,” Newton says.
That can happen with any kind of egregious ED charting mistakes. In one memorable case, the EP copied and pasted information suggesting the patient was ambulating with a normal gait. ED nurses documented the patient was writhing in pain on the floor.
The plaintiff’s lawyer used the sloppy documentation to suggest an inattentive EP was trying to create the appearance of more intimate involvement in the patient’s care than actually occurred. “The physician’s credibility as to what did and did not happen will be ruined,” Newton explains.