Is EP Liable if Patient Fails to Disclose Substance Abuse?
Documentation makes claims more defensible
When a patient arrived at an emergency department (ED) and reported chest pain, he failed to notify the emergency physician (EP) that he was addicted to opiates. The case involved a patient who suffered a cardiac event while visiting relatives. The family had no knowledge of the patient’s medical history or current medications he was taking.
"In fact, the patient’s cardiac event was actually a symptom of opiate withdrawal," says Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. "He alleged that the physicians failed to provide him with the proper treatment for his condition."
In order to learn as much about this patient as they could, the EPs determined the names of the patient’s physicians at home and immediately faxed them requests for the patient’s medical records.
The case is still pending, reports Greenfelder, but the EPs’ actions in immediately obtaining the patient’s medical records and evaluating his condition has made the case more defensible. "The EPs’ actions were reasonable under the circumstances, and have basically eliminated any claim for breach of the standard care on that specific issue," he explains.
Question Often Isn’t Asked
Patients presenting with fever and constitutional symptoms such as myalgias and malaise without a localizing source are often diagnosed with viral syndrome and, particularly when the patients are young, may be sent home from the ED with minimal work up.
"However, patients with a history of intravenous drug abuse (IVDA) who present with fever are at risk of endocarditis," says Darien Cohen, MD, JD, an attending physician at Presence Resurrection Medical Center and clinical assistant professor in the Department of Emergency Medicine at University of Illinois, both in Chicago.
The signs and symptoms of endocarditis can be particularly difficult to diagnose, and if a history of IVDA is not obtained, this diagnosis may not be considered. "If the patient were to return critically ill with a subsequent diagnosis of endocarditis, it would be important to have documented that the patient denied any illicit substance abuse at the initial visit," says Cohen.
Similarly, young patients with chest pain are generally thought to be at relatively low risk for coronary artery disease. However, says Cohen, one of the many risk factors for coronary artery disease is cocaine use.
"Patients who have a history of cocaine abuse presenting with chest pain generally require a more extensive work up, and there is a lower threshold for admission," he says. Failure to obtain and document a history of substance abuse can put the physician at risk legally if the patient subsequently presented with a cardiac event, says Cohen.
Certain prescriptions may be contraindicated in a patient with a history of substance abuse. "Generally, physicians would not prescribe narcotics to a patient with history of heroin abuse," says Cohen. "However, if there is no social history documented, and the patient subsequently overdoses on prescribed narcotic pain medication, the physician could be at risk."
While patients are not always honest about their illicit drug and alcohol use, EPs should at least ask the question and document the response, advises Cohen.
"It is much easier to defend a chart in the above scenarios wherein the physician documented that the patient denied illicit drug use, than a chart where no mention is made of the patient’s social history," says Cohen.
Stephen A. Barnes, MD, JD, an attorney at McGehee Chang, Barnes in Houston, TX, says that in his experience, it is more common that an EP doesn’t properly inquire about substance abuse than it is for a patient to fail to disclose when proper inquiry is made. For instance, patients are typically asked, "What medications are you currently taking?"
"They answer appropriately with prescription medications. The inquiry into substance abuse is an entirely different ballgame and usually not asked by doctors," says Barnes.
Electronic medical records (EMRs) make it more likely that ED nurses will skip asking about substance abuse and simply check the "none" box, he adds. "For EPs, it’s rare for them to ask at all, and if they are asking, it’s due to a suspicion of abuse," says Barnes. "And if there is a suspicion of abuse, the standard of care is to get a toxicology screen."
Unanswered Question Is Red Flag
A plaintiff attorney might allege that the EP failed to seek the information because the ED history doesn’t ask about at-risk behaviors. "That would probably pose liability for the ED corporation and/or hospital. But in some circumstances, the doctor might also be culpable for not having insisted that they use such a protocol," says Kathleen M. Roman, MS, a Greenfield, IN-based risk management consultant.
Roman recommends that all EDs use a written health history that asks every patient about substance abuse, with at least two people reviewing the document — the physician assistant (PA) and the EP, for example. "If the patient answers the question in the affirmative, then the treatment plan needs to be adjusted, if necessary, to take into account the patient’s risk," she says.
If the EP makes no notation of the patient’s affirmative response, and the patient suffers an injury that appears to be related to the at-risk behavior, a plaintiff attorney might allege that the EP failed to pay attention to the information.
For example, the PA might ask the patient verbally, note the information, and pass it along, either in writing or verbally, to the EP, who might forget about it or fail to review the notes before examining the patient. In other cases, patients leave the question blank on a paper health history form.
"A blank space becomes an immediate red flag for assertive follow up with the patient, including additional testing if the doctor thinks it is beneficial," says Roman. "If there is any suspicion that the patient has attempted to mislead the ED team, the ensuing conversation should include two members of the ED team, one of whom is there as a witness."
If the patient lies on the form and there are no significant signs that he or she might be lying, the EP is likely to be protected, says Roman, because the patient’s risk of injury is self-triggered. "The record is the physician’s biggest protection," she says. "And in an ED, where doctors are unlikely to know their patients, it is critically important."
Document Patient’s Denial
Stephen G. Reuter, JD, an attorney with Lashly & Baer in St. Louis, MO, gives the scenario of an ED patient denying alcohol use who is then given a medication in the ED that causes acute liver failure. "The best way to prevent a plaintiff lawyer from taking the case is to document the patient’s denial of alcohol use," he says. Drop-down checkboxes in EMRs are not as strong a defense as the EP actually writing a note, adds Reuter. "If there is a heightened suspicion for whatever reason, the EP can be specific without being accusatory," says Reuter. For instance, the EP can ask the patient, "Are you taking any narcotics or pain medications?" or "Are you currently using any recreational drugs?"
"It takes longer to do this, but if the EP is concerned, it’s a good idea to go ahead and type in, Patient denies use of pain medications or recreational drug use,’" says Reuter. "That way it’s more specific to this patient, as opposed to a rote checklist."
If the EP has access to the patient’s previous records indicating the patient’s history of alcoholism, the plaintiff attorney is likely to argue that the EP had an obligation to access these records. "If the EMR contains the patient’s previous records, that is creating a potential new standard of care for EPs," Reuter explains. "If the EP doesn’t look at those, and the answer is there, then the plaintiff attorney now has something to talk about."
An EP can have a nurse or unit secretary access the part of the EMR that contains the patient’s medication history. "The problem with that is it’s ivory tower stuff — as a practical matter, it’s very difficult to do," says Reuter.
EPs should check the triage and nursing notes to see whether these are consistent with the EP’s documentation about the patient’s substance abuse or alcohol use, recommends Reuter.
"It’s going to be harder for a plaintiff attorney to take the case when you have three health care providers in one record documenting that the patient said they weren’t taking any pain medications," says Reuter.
For more information, contact:
- Stephen A. Barnes, MD, JD, McGehee Chang, Barnes, Houston, TX. E-mail: firstname.lastname@example.org.
- Darien Cohen, MD, JD, Clinical Assistant Professor, Department of Emergency Medicine, University of Illinois, Chicago. Phone: (630) 674-2884. E-mail: email@example.com.
- Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5230. E-mail: firstname.lastname@example.org.
- Stephen G. Reuter, JD, Lashly & Baer, St. Louis, MO. Phone: (314) 436-8326. E-mail: email@example.com.
- Kathleen M. Roman, MS, Roman Empire Consulting, Greenfield, IN. Phone: (317) 326-7543. E-mail: