If a stroke patient alleges failure to administer tissue plasminogen activator (tPA), whether a timely neurology consult was obtained likely will be a central issue in the litigation. The following are some issues that can arise during litigation:

The EP failed to request a neurology consult. “The most common legal pitfall with neurology consults is not getting one when you should,” says Kenneth Alan Totz, DO, JD, FACEP, a Houston-based attorney and practicing EP.

A good example is a patient with cerebrovascular accident symptoms who does not meet the National Institutes of Health Stroke Scale criteria for tPA administration. “That patient may be aggressively treated with tPA by the consulting neurologist, or the neurologist may suggest a transfer to an institution with interventional neurology care, or provide some other diagnostic considerations to further evaluate the patient,” Totz says.

In his own practice, Totz pre-emptively involves (time permitting) any consulting service that will be assuming care of a procedure started in the ED (e.g., tPA for stroke or myocardial infarction with ST-segment elevation). “This is especially true when my care may drastically impact the care to be rendered by the specialist consultant,” Totz reports.

The EP requested a consult, but it happens too late. When difficult neurologic cases arise, or the care will be complex and require ongoing neuro consults, “consider getting them on board sooner than later,” Totz offers.

Most emergent neurological issues include some component of time dependency. If the neurology consult is delayed, the EP should document in the chart the reason why. Otherwise, the plaintiff attorney can paint a picture of a patient who presented for care, but unacceptable delays closed the window of treatment opportunities.

Totz stresses that “it is extraordinarily critical” to document the time the patient was seen, the time of consultation, and the time care was initiated. “This is crucial to legally protecting yourself when time-critical treatment is being considered,” he cautions.

The EP, for whatever reason, chooses to deviate from the consulting neurologist’s recommendations. “If the consultant’s recommendation, neurology or otherwise, differs from your anticipated treatment, consider asking the neurologist to come in to personally see the patient, consulting another neurologist, or transferring the patient,” Totz says.

Recently, a neurologist sent a pregnant patient to the ED for a lumbar puncture. The patient reported headache and fever on a Friday afternoon. The neurologist never saw the patient. After seeing the patient, Totz believed she clearly had sinusitis, without any suggestion of meningitis and without any clinical justification for a lumbar puncture. “I conveyed my thoughts to the neurologist, who then belittled me with his authority as a board-certified neurologist,” Totz recalls.

Totz countered with the fact he was board-certified in emergency medicine, and, in addition, was the only physician who had actually examined the patient. Totz requested the neurologist come see the patient. The neurologist declined. Totz responded that he would start the patient on antibiotics for presumptive sinusitis and observe the patient under the neurologist’s service so the neurologist could perform a lumbar puncture if the neurologist believed it was indicated.

The patient was discharged the next morning on oral antibiotics, without undergoing a lumbar puncture. In the chart, Totz noted a lack of fever, lack of meningismus, and lack of any other signs of meningitis that normally would prompt a lumbar puncture recommendation. “These are very high-risk situations, whether you comply with the consultant’s recommendations or depart from them,” Totz explains.

There is legal risk if the EP does not follow what the consultant recommends and the patient actually is living with the disease of concern. If the EP does follow the consultant’s advice and orders the lumbar puncture, there also are legal implications.

“If you don’t document a reasonable rationale for the exam, you could be in trouble if there are complications from an unnecessary procedure,” Totz explains.

Just documenting “the consultant wanted the procedure” is not enough for a strong defense. “Meticulous documentation of the discussion with the consultant and the rationale for departing from their recommendations must be noted,” Totz says.

The EP discharged a patient after the neurologist refused to come in to evaluate the patient. “One of the hardest obstacles for young EM docs to hurdle is knowing when to request — or demand — the consultant perform a bedside evaluation,” Totz says.

If the consultant refuses to come in, Totz says to document this and call the chief of staff or chief medical officer. If the EP cannot do so, he or she can consider transferring the patient, noting the reasons in the medical chart, along with the EMTALA form that asks why the patient is going to be transferred despite the fact the specialty exists at the hospital.

“Do not discharge a patient if you feel strongly about a necessary consultation,” Totz says.

Christopher B. Colwell, MD, chief of emergency medicine at Zuckerberg San Francisco General Hospital and Trauma Center, says that in terms of ED consults, neurology is “one of the higher-risk areas. In cardiology, it’s clear when the patient is going to have to get to the cath lab. There are pretty clear criteria, similar to surgical and trauma patients.”

Neurology cases are less clear because patients often present with vague, non-specific symptoms (e.g., dizziness). “You want to have neurology involved early if patients are having a stroke to maximize everything we can do for them,” Colwell offers.

EPs have to determine whether to contact the neurologist for a patient with subtle symptoms that also could be something completely unrelated to stroke. “Where I see medical-legal cases, almost inevitably it’s because you didn’t recognize stroke soon enough, you didn’t initiative tPA soon enough, and you didn’t get neurology involved soon enough,” Colwell observes. When the EP calls neurology for a patient with unclear symptoms, the response might be “Why are you getting us involved?”

“It is much less clear when the right time to get a neurologist involved, prospectively. It’s always clear in retrospect that the numbness in the finger of the left hand was a sign of a stroke,” Colwell says.

EPs know what to do if someone suddenly lost the use of his or her left arm and leg, but other stroke cases just are not that clear. “Very few patients are crystal clear,” Colwell notes.

The ED chart should be transparent on the outcome of the discussion with the neurologist (e.g., there was a mutual agreement that it probably is OK for the patient to be seen the next morning). If the consultant declines to come in, the EP should be explicit on that, too, while avoiding inflammatory comments such as “consultant refusal to come in.”

“When plaintiff attorneys see that, they start counting the zeros on the check. It’s a battle that nobody wants to be in,” Colwell cautions.

At deposition, the neurologist’s typical response is, “If only the EP expressed the appropriate amount of concern, I would have been more than happy to come in. That’s what I do all the time. It was only because the EP didn’t describe the story appropriately, or express to me the true findings on exam.”

“The defense is going to be the same every single time,” Colwell says. “It’s not that they are bad people. It’s just that at that point, they are defending what they did, which is not come in.” It is much better to reach an agreement up front on when neurology will be called, with set criteria for when neurologists will come in to see the patient. That might include a stroke scale score so that both the EP and neurologist are speaking the same language. “It should be discussed ahead of time,” Colwell says. “At 2 a.m., it is almost never going to work out well.”

Early in Colwell’s career, he saw a 67-year-old man with hypertension and dizziness and was reluctant to discharge the patient because something just did not seem right. The neurologist refused to become involved in the case. The patient was sent to family practice, and suffered a devastating stroke. “They didn’t go forward with a lawsuit, but we did get a notification of intent to sue,” Colwell recalls.

Because of those “gut feeling” cases, Colwell says one criterion has to be the EP simply believes a neurology evaluation is necessary. If it turns out a particular EP is calling for consults needlessly all the time, that can be addressed separately. “The beginning of the conversation with neurology can be, ‘This is really a high-risk situation. It’s high risk for all of us,’” Colwell suggests.

The EP can discuss the reality of stroke lawsuits — namely, that both the EP and the neurologist are likely to be named. It also is important to consider the fact that plaintiff attorneys build cases based on the perception that strokes can be 100% cured if medication is given early enough.

“Their first question is, ‘Did they give you the clot-busting medication?’ If not, we have a lawsuit on our hands,” Colwell says.

One approach is to ask neurologists to agree to a six-month trial of coming in when EPs request it, based on agreed-on criteria. If, at the end of the six months there really are too many inappropriate consults, the criteria always can be re-evaluated. Both sides need to trust the process.

“They’ve got to be confident that you may look at it and conclude that some EPs are just not good at neurology and are making calls on every dizzy patient,” Colwell says. It gives neurologists a chance to educate ED providers on which cases they are more worried about. The culture at the institution also matters.

“If the neurologists are constantly critical and unpleasant, whether intentional or not, they’ve created a culture of ‘don’t call me,’” Colwell observes. Creating a “culture of collegiality” with good communication is what is needed, says Colwell. “If that’s set up ahead of time, these discussions are so much easier.”