Consider Liability Risks in Post-discharge Contact

Was an abnormal lab result missed, such as a potassium level of 2.5? Was an incorrect medication prescribed? Or was a radiology study misinterpreted which revealed a pneumothorax? In every one of these scenarios, it is necessary for the ED physician to call the patient, says Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and co-director of University Hospitals Geauga Medical Center's Chest Pain Center in Chardon, OH.

"The emergency physician makes thousands of decisions during each shift, and sifts through reams of data," says Garlisi. "The odds are that mistakes will occur in the inspection, interpretation, and analysis of the ancillary data. Despite electronic health records, radiology over-reads, and electronic discharge software, mistakes still occur."

Missed Findings?

"Incidentalomas," incidental findings on X-rays, are occasionally received by the ED physician after the patient is discharged. If the providing ED physician is still there, Audie Liametz, MD, JD, assistant medical director of the ED and chairman of the ED Quality Improvement Committee at Mineola, NY-based Winthrop University Hospital, says that physician or his or her representative in the department should follow up with the patient and/or their physician to communicate the findings and recommend appropriate follow up.

"Direct communication with the patient should be done by phone, if possible. This communication should be documented in the medical record as an addendum, with time and date noted," says Liametz. "Communication with the patient's physician, or with their authorized representative, should be done by either phone, fax, and perhaps e-mail. This communication should be documented as well, noting with whom this communication was had."

Liametz says that if on the other hand, the information is received by the ED physician after the patient is discharged and after the providing ED physician has completed his or her shift, an "X-ray recall system" should be in place.

"There should be a mechanism established in the department and coordinated with radiology whereby these incidental findings are reported as an X-ray recall to someone in the department, preferable someone in the administrative capacity," says Liametz.

He says that the system should designate a responsible person in the ED, whether a physician, physician's assistant, nurse practitioner, or quality assurance individual, whose role it is to communicate this information to the patient and/or his physician.

"This communication and findings are then made part of the official medical record, with time and date stated," says Liametz. "It is critical that this follow-up information gets sent to the medical records department and becomes part of the official medical record, rather than simply being kept in the ED."

Keeping the information only in the ED can result in a potential problem years later if a plaintiff's attorney subpoenas the official medical record, because this critical follow-up information will not be included. It may not even be able to be located. "If this information were made a part of the medical record at the beginning, when the findings were discovered and acted on by the ED, it would potentially save unnecessary strife later on," says Liametz.

Liametz says that increased use of electronic medical records will make this an easier task. "The person who makes the notation and/or communication will be able to place an addendum in the ED medical record about what information was communicated and to whom," says Liametz. "This information will be time and date stamped as an addendum. This chart can be flagged to be resent to medical records for an update of the official medical record."

Once a system is in place, the information can be communicated by a physician's representative, physician's assistant, nurse practitioner, or nurse manager. "The point is that the information needs to be communicated by a clinical person, and this communication needs to be documented in the official medical record," says Liametz.

Liametz says the same process can be used for missed critical findings. However, there should be an understanding that it is the responsibility of the radiologist to flag serious or critical missed findings by the ED, and communicate missed findings by the radiology resident to the appropriate ED personnel.

"For example, serious or potentially life-threatening radiographic findings such as missed cervical spine fractures, subarachnoid hemorrhages, pneumothoraces, appendicitis, ectopic pregnancy, to name a few, need to be communicated urgently to the ED," says Liametz. "The more urgent the finding, the more quickly the finding needs to be acted upon."

Patient Can't Be Reached?

If the patient can't be reached with the contact information he or she provided to the ED, Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center, says that additional efforts should be made only "when there is true concern, such as when the doctor is worried, the patient leaves against medical advice, or when lab tests come back after discharge."

Garlisi recommends these practices:

• Intercede as soon as possible if the patient is discharged prior to finding the mistake.

• If the patient cannot be reached by phone, send a registered letter to the patient address on file.

• Advise the patient during the registration process that it might be necessary to contact them regarding unexpected or unanticipated issues stemming from their care, or test results.

• Explain that in the event that the patient needs to be contacted to relay important information discovered at a later time, it is essential that the ED has accurate phone contact information, even third party if necessary, as well as the patient's mailing address.

However, be careful about drafting any additional forms stating that it's okay to give information to a designated third party identified by the patient at registration. "This may be construed as imposing a duty upon a hospital to contact any such designated person, and to provide them with the patient's medical diagnosis," says Marlow J. Muldoon II, JD, an attorney at Dallas-based Stewart Stimmel LLP. If your ED routinely requests emergency contact information, that should be sufficient to allow a generic message to be left as needed, says Muldoon

The fact is that patients have a variety of reasons to not provide accurate information. "Even if the person provides their correct name, there are instances where the addresses are wrong, either intentionally or unintentionally, the phone contact number is wrong or the entire name and demographic information is inaccurate," says Liametz. "We can only go by what we have." He says to follow these steps:

• For less life-threatening problems, all attempts to contact the patient should be documented.

"It may be useful to send a certified letter, telegram, or mailgram, and document such in the record," says Liametz.

• In cases of severe and/or life threatening possible consequences, the ED staff should make reasonable efforts.

This may include enlisting the assistance of other personnel such as local police or emergency medical services to try to make contact with the individual. These steps should be documented, as well.

• Use caution when leaving phone messages to avoid violating patient privacy regulations.

"We do not know who is going to receive this information," says Liametz. "It would be wise for the practitioner to leave a basic message for the person to recall the ED without providing specifics. Provide them with a contact number and person with whom to speak with."

"Patients have an obligation and responsibility to help their physician with their care," says Liametz. "If the patient provides incomplete and/or inaccurate contact information, all the ED physician can do is use their best and most reasonable efforts to try to communicate the information to the patient."

Muldoon advises taking the following actions for this circumstance:

• If the patient's next of kin or emergency contact person is contacted, inform them only that the patient needs to contact the ED as soon as possible.

• Provide only general statements such as "it is very important" when leaving the message, to ensure patient confidentiality.

• When possible, contact the patient's primary care physician.

• Send the patient a certified letter informing the patient of the need to contact the ED and/or their primary care physician. "The ED should document all of its reasonable efforts to contact the patient, but it is not under a duty to hire a private investigator," says Muldoon.

"The patient should be advised to return to the ED, call the ED to speak with an ED physician, or contact their primary care physician," says Muldoon. "This should be done only after informing the ED physician first. The ED should refrain from making specific recommendations or providing specific information regarding the test results or the diagnosis."

For more information, contact:

• Andrew Garlisi, MD, MPH, MBA, VAQSF, University Hospitals Geauga Medical Center, Chardon, OH. Phone: (330) 656-9304. E-mail:

• Jonathan D. Lawrence, MD, JD, FACEP, Emergency Department, St. Mary Medical Center, Long Beach, CA. Phone: (562) 491-9090. E-mail:

• Emory Petrack, MD, FAAP, FACEP, Petrack Consulting, Inc., Shaker Heights, OH. Phone: (216) 371-8755. E-mail:

• Linda M. Stimmel, JD, Stewart Stimmel, Dallas, TX. Phone: (214) 752-2648. E-mail: