Certain pieces of information, if omitted from the ED medical record, instantly raise concerns about the quality of the care provided.
These missing items in particular complicate malpractice defense, according to John Tafuri, MD, FAAEM:
• Vital signs that were taken at the beginning of the ED visit. “When I look at a chart, I look at the vital signs first. That gives me an idea how sick somebody is in a general way,” says Tafuri, regional director of emergency medicine at Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland.
If Tafuri sees vital signs are missing from the ED chart, he asks the ED nurse about it. Sometimes, nurses obtained the vital signs but just forgot to document them. “It’s surprising how often things like that are missing from the chart,” Tafuri says.
Depending on specific allegations in the lawsuit, missing vital signs can appear suspicious. A chart without a pulse oximetry level in someone presenting with shortness of breath, or no temperature for a patient who died of sepsis, are “very problematic,” Tafuri cautions. “That’s a big issue, because it directly relates to the problem and the complications.”
• The fact the patient was informed of incidental findings. In one case, the EP noted a nodule on a woman’s chest X-ray, and documented it in the ED chart. “But there was no documentation that the patient was informed,” Tafuri notes.
Subsequently, there was a lawsuit alleging delayed diagnosis of cancer. The plaintiff attorney insisted the EP never mentioned the worrisome finding. The EP insisted he had told the patient and her husband about it. “A year into the litigation, during his deposition, the husband eventually admitted the EP did tell them about it,” Tafuri relates.
This came as a big surprise to the plaintiff attorney, who had by that time invested thousands of dollars pursuing the claim. The lawsuit hinged in large part on the EP’s alleged failure to inform the patient of the incidental finding, which turned out to be a false allegation. The case was dismissed days after the bombshell testimony. “Interestingly, the plaintiff probably had a cause of action against the follow-up physician. But, because of the poisoning of the case, everyone was dismissed,” Tafuri says.
Plaintiffs may not always tell their attorneys the full story. “They then get nervous under oath, and tell the truth,” Tafuri observes.
In this particular case, if the EP had simply documented that the patient was informed, it is likely no malpractice lawsuit would have happened in the first place. “It’s extremely difficult to say the patient was never informed when it’s in the discharge instructions,” Tafuri explains.
If the finding has nothing to do with the reason the patient came to the ED, it is easy to put off a discussion. That is why whenever an incidental finding requiring follow-up is noted, Tafuri documents it in the discharge instructions without delay. “As soon as you see it, you put it in. Otherwise, you’re likely to forget,” Tafuri says.
• The ED chart does not indicate the patient’s chief complaint ever was addressed. In one malpractice case, the plaintiff was a young man who was in a bicycle accident a few days earlier. The ED chart noted a chief complaint of left calf pain. The nurse practitioner (NP) documented a detailed examination of the patient’s knee, but made no mention of the calf pain. The patient died of a pulmonary embolism shortly after the ED visit.
“The NP never addressed the chief complaint that was clearly documented in the medical record — in big letters in the chief complaint box,” Tafuri says. The claim settled for an undisclosed amount before trial.
• The EP does not address conflicting statements made by others. “It’s important to address everything that’s in the chart by other providers that you do not agree with,” Tafuri stresses.
ED nurses may chart the patient has peritoneal signs or rebound tenderness. If Tafuri disagrees, he charts, “Nurses notes noted.”
“That gives me license to say, in the event of some type of legal proceeding, that I saw what the nurses wrote, but I disagreed — on my exam, it wasn’t there,” Tafuri offers.
• Abnormal vital signs are noted, but go unexplained. “Plaintiff attorneys can use this to show that there is disorganization or that you missed something that someone else picked up on,” Tafuri says.
This often happens at discharge. ED nurses chart a vital sign that clearly is abnormal. It could be there is a good explanation. For instance, a bronchodilator might be causing a patient’s tachycardia. “Document that you noted the vital signs and your explanation for the abnormalities — and why you felt that it was still OK to discharge the patient,” Tafuri suggests.
Many times, there is no explanation in the chart on what the EP was thinking at the time. It appears as though the abnormal finding was ignored. “It’s important to acknowledge things that could make it appear that the plaintiff was sicker than they really were at the time,” Tafuri says.