lMedical Malpractice and Risk Management — Part II of II

By Jonathan Siff, MD, MBA, FACEP, Director of Clinical Informatics, The MetroHealth System; Director, Emergency Informatics, Assistant Operations Director, Department of Emergency Medicine, MetroHealth Medical Center; and Associate Professor, Case Western Reserve University School of Medicine, Cleveland, Ohio

Risk management is the process of identifying factors that may be a source of exposure to lawsuits and adverse outcomes. This process includes the evaluation of physical plant characteristics, work flows, processes, and individuals who may contribute to risk. Once factors are identified they should be eliminated or minimized to the extent possible. All risk cannot be removed so it is important to have policies and procedures, as well as insurance, for when problems do arise.

To understand how to limit risk, the emergency physician must be aware of the major sources of risk in the emergency department (ED). The ED is an inherently risky place to work due to a number of factors, some of which are listed in Table 1. These factors may lead to errors that may produce poor results and potentially result in litigation. The error types most commonly reported in emergency medicine include: diagnostic error or delay, treatment error or delay, improper performance of procedure or treatment, misinterpretation of tests, and failure to consult or refer.1,2

A recent study evaluating the sources of diagnostic errors in the ED found that cognitive errors encompassing errors in judgment, knowledge, and vigilance or memory contributed to 96% of claims with an identified error.3 Communication errors, particularly as they relate to patient handoffs, were involved in 35% of diagnostic errors. System errors, including issues with supervision, workload, and fatigue, were noted in 37% of cases; these errors were more prevalent when students or residents were involved. Patient-related factors were involved in an additional 34% of cases. Of note, two-thirds of the errors involved cases where more than one provider participated in the patient's care.

Studies looking at the patient complaints associated with malpractice risk have consistently found certain diagnoses to be the highest risk.1-5 These complaints are listed in Table 2. One compilation of the literature found missed myocardial infarction (MI) to account for 10% of claims but 24% of total dollars paid.5 This same study found missed wounds and fractures to account for significant percentages of both number of claims and dollars paid; however, the payment per case was relatively small. Some diagnoses, such as ectopic pregnancy, missed meningitis, and spinal cord injury, accounted for a small number of claims but a significant portion of total dollars paid. Some of these high-risk diagnoses, including cardiac ischemia and MI, abdominal aneurysm, and appendicitis, may present atypically, creating increased risk for the physician.

Reducing Risk

A review of the various risks and sources of error allows the department and staff to design systems and influence behaviors to minimize risk.

Risks Inherent in the ED

While some of the issues outlined in Table 1 are simply facts of ED life, such as 24-hour operation, high acuity, and the absence of provider continuity, there are steps that can be taken to reduce risk. Around-the-clock operation means that people are working when their bodies want to be sleeping. Techniques such as anchor sleep, graduated scheduling, and full-time night staffs have been proposed as ways to reduce errors due to fatigue.6 Adequate staffing to handle high acuity and reduce provider stress also can be beneficial. In many EDs, providers have numerous distractions including the next acute patient rolling in the door, pharmacy calls about prescription refills, and pages regarding requested transfers. These distractions should be minimized and referred to others when possible for resolution. Long waits, which are endemic in some EDs, create patient frustration that can lead to patient and family hostility. A simple apology for the wait from the provider can go a long way to changing the patient's perception of the situation.17

Table 1. Elements that Increase Risk in the ED

  • 24-hour operation (someone has to work night shifts)
  • EDs frequently operate in excess of capacity
  • Patient-provider relationship not established
  • ED patients are high acuity
  • Multiple distractions to providers in the ED
  • No provider continuity due to shift work
  • Patients are stressed, not always in ED of own free will
  • Long patient waits

Source: Jonathan Siff, MD, MBA, FACEP, Cleveland, OH

Review of Error Types

Cognitive errors can be addressed through regular training and the use of clinical guidelines for prevalent or common complaints.1 Providers also should be aware of their limitations of practice and make liberal use of consultants when needed to assist with diagnosis or treatment.7

Communication errors are a source of many problems leading to risk and often are among the easiest for providers to address. First, communication with patients plays a significant role in patients' satisfaction with the visit.8

Some actions providers can take to establish the patient-provider relationship are noted in Table 3. A few of these actions merit additional discussion. Introductions are simple and important. Tell the patient your name and your place on the health care team (attending or supervising doctor, resident physician, nurse, student, etc). Often patients will not realize that a resident is actually a physician. Also, engaging family in the room in addition to the patient is important.8 This makes the patient and family feel like you care about them and their involvement. Lawsuits often are initiated at the behest of unhappy family members. Patients often feel like the "doctor never told me anything." Confirming that patients understand their diagnoses and discharge instructions, particularly those related to follow up, treatment, and what to return to the ED for, are key elements which must be ensured prior to discharge. It was estimated that half of the lawsuits in one review were related to the patient's lack of understanding of the discharge instructions or inability to implement the instructions, such as where to follow up for care.8 Patient handoffs are also a significant area of risk for patients and providers. One systems review found that half of hand-off related claims were high risk and 9% of those claims originated in the ED.9 Providers may fail to consider all the possibilities in a transferred or signed-out patient because they receive the patient with a pre-existing plan and diagnosis. It is a good practice for providers to meet each patient signed out to them and to evaluate them as least once prior to discharge.8,10

Table 3. Provider Interpersonal Behaviors that Can Reduce Risk8,15

  • Introduce yourself to the patient and family
  • Dress neatly and professionally
  • Address patients respectfully
  • Sit down at the bedside
  • Discuss with patients their expectations of care
  • Speak in clear, simple language avoiding medical terms
  • Provide emotional support and show empathy

System issues that lead to unrealistic work loads, high numbers of patients who leave without evaluation, and inadequate supervision of residents and students must be addressed. In some cases improvement of processes is enough to remediate the problem but in others additional staff or resources may be required.

Specific Diagnoses

Certain diagnoses present a high legal risk to emergency physicians. As noted in Table 2 these cover a wide variety of systems and mechanisms. Providers must be aware of these diagnoses and their atypical presentations and consider the possibility a of high-risk problem in every patient. Avoid placing a diagnosis on a patient without sufficient clinical certainty.11 In addition to giving an appearance of error should litigation occur, an incorrect diagnosis might mislead later providers. When a diagnosis is uncertain, describe the patient's condition with symptoms. An example often cited is that of gastroenteritis. While it is tempting to give the patient with abdominal cramps, nausea, vomiting, and a benign exam the diagnosis of gastroenteritis, this should be reconsidered. Gastroenteritis is the mistaken diagnosis in a significant number of missed appendicitis cases.12 By giving patients a less-specific diagnosis and educating them that it is unclear what is wrong and that they should definitely come back if they get worse, physicians can avoid locking themselves and the patient into an incorrect diagnosis that could come to haunt both of them later.

Table 2. Complaints and Diagnoses Associated with High Risk of Diagnostic Error1-4

  • Chest pain/missed myocardial infarction
  • Wounds (retained foreign body, nerve or tendon damage, poor healing)
  • Missed fractures
  • Abdominal pain (including appendicitis and abdominal aneurysm)
  • Pediatric fever
  • Meningitis
  • CNS bleed
  • Embolism (pulmonary, stroke, extremity)
  • Trauma related
  • Spinal cord injuries
  • Ectopic pregnancy

Treatment Errors and Delays

The ideal treatment of certain diseases is unclear. As a result, physicians may be at risk if they give or withhold treatment. In the case of stroke lawsuits, about half are filed because thrombolytic therapy was given and the other half because it was not.13 Numerous similar situations exist where the standard of care is not well defined. Given this environment, physicians must have careful and well-documented discussions with patients and families about what treatments are or are not being given and why. Once treatment is clearly indicated, proceed with it as quickly as possible; do not delay to get one more test or wait for the results of a confirmatory lab or x-ray.13

General Rules to Avoid Trouble

Read the chart. Look at what the nurses and staff wrote. It may contain information of which providers were unaware. If something is inaccurate, providers should be sure to address the inaccuracy in their notes.13

Abnormal vital signs should be treated, clearly explained, or the patient admitted. One study that looked at unexpected deaths within seven days after ED discharge found that the majority of those patients whose deaths were determined to be related to the ED visit had abnormal vital signs. Most were discharged without explanation of the abnormal vitals signs or a documented recheck that demonstrated normalization. Tachycardia was the most common abnormality occurring in 83% of these patients.14

Avoid criticizing the care provided by other physicians.15,16 This includes comments or gestures in front of patients or family as well as in the chart. This may only lead to increased litigation and your statements may be used against other providers in a lawsuit.17

Providers should not make inflammatory or disparaging remarks about patients, particularly in the medical record.

Never make guarantees. Although it is tempting to reassure patients that all the glass was removed from their wound, that their atypical chest pain was definitely not cardiac, or that nothing was broken, these types of reassurances should be avoided. Not all fractures appear on the initial x-ray (most notably scaphoid fractures). The literature also shows that retained foreign bodies, despite efforts to find and remove them still are going to escape detection occasionally.5,8,18 The difficulties of diagnosing acute myocardial infarction in the ED are well documented.19 When guarantees turn out not to be accurate, patients are likely to feel betrayed and lied to and may reach for the number of the nearest malpractice attorney.

Documentation should provide a clear picture of the patient's presenting complaint, the history of the illness, examination, ED course, medical decision making, disposition, and plan. Many template systems substitute check boxes for a narrative description of the patient's history and course. Written or dictated narratives are very helpful to paint a clear picture of the entirety of care and can improve the physician's ability to defend a case.7 Due to the frequent inclusion of issues surrounding consent in litigation, providers should consider including in every chart an adequate description and examination of the patient to validate the patient's capacity for medical decision-making.

Beware of the "drunk" or psychiatric patient. While some ED patients are intoxicated or have stable psychiatric issues, others actually may be exhibiting signs of an acute illness or injury. In addition, these patients are more likely than patients without substance abuse or psychiatric issues to die unexpectedly after ED discharge.14 Good clinical evaluations of these patients each time they present and over time while in the ED will help to differentiate the stable or improving patient from the decompensating patient. This cohort of patients also is less likely to follow up, to take medication as directed, or to return if worse. Providers should consider a lower threshold to admit or further evaluate these individuals.

Repeat visits may be a sign that something was missed. Many providers view patients who return for the same problem unexpectedly as noncompliant, having psychiatric issues, or looking for a secondary gain.16 In reality these patients may be giving the health care system another chance to get it right.8 It may be helpful to have a different provider see the patient on subsequent visits when possible, and some emergency physicians recommend after a third presentation for the same undifferentiated problem that admission should be strongly considered; however, this clearly is not a standard of care.8

Repeat exams can help uncover the natural course of a disease. Documenting a repeat exam also may show improvement in symptoms, exam findings, and vital signs or may detect deterioration that needs to be addressed. Also consider re-examining the notes of other providers. These may show trends or changes that require action.13 Providers should consider documenting a repeat abdominal exam prior to discharge on every patient presenting with abdominal pain.

Patients leaving against medical advice (AMA) are also a source of high risk. As many as one in 300 of these patients may sue and some will win. Have patients sign the AMA form in addition to documenting a clear discussion in the chart that you reviewed the risks and benefits of the recommended treatment, that the patient refused, and that the patient had the capacity to make medical decisions. A complete discussion of leaving AMA and medical decision-making capacity is beyond the scope of this article. Providers should consider treating patients leaving AMA as well as they and their condition will allow. Always make it clear that you told the patients they are welcome to return at any time.

Discharge instructions can be the physician's best friend or worst enemy in the case of litigation. Discharge instructions should be time- and action-specific.5,8 The instructions should tell patients specifically what to do, what not to do, when to return to the ED, and when to see a physician in follow up. Language in discharge instructions should be easy to understand and use of an interpreter should be considered if there is question of a language barrier. The purpose of any prescribed medications and the instructions for use also should be discussed with the patient. A discussion of medication side effects may reduce the providers' potential exposure to third-party liability lawsuits in addition to the benefits to the patient of this education. Since patients often are scared, tired, and ill, all instructions ideally should be written and reviewed verbally by someone on the health care team with the patient and any family present to help ensure understanding and recall.

Here are a few final points to help create a more lawsuit resistant chart. First, time every order and time key events, such as calls to consultants, requests for transfer or admission, and repeat examinations. It is also important to document your time of first contact with patients. When asked to come see patients because they are having issues, try to do so immediately and document your response as such, where applicable. Refer to other providers in the chart by name, not just their specialty. When calling a consultant or other provider, document that you spoke to "Dr. Smith" of orthopedics, not just that you spoke with the orthopedist on call. The reasons behind transfers should be clear and compliant with EMTALA regulations.20 Finally, make the reasons behind your clinical decisions clear in the chart.

The high risk of emergency medicine practice makes it important that departments and individuals engage in high-quality medical practice and, where possible, implement systems to minimize risk and error. These efforts can reduce liability exposure and improve patient outcomes.1

The information and suggestions in this article are general rules and not applicable to every patient or situation. These suggestions do not constitute a standard of care but are the opinion of the author.

References

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3. Kachalia A, et al. Missed and delayed diagnoses in the emergency department: A study of closed malpractice claims from 4 liability insurers. Ann Emerg Med 2007;49:196-205.

4. Karcz A, et al. Malpractice claims against emergency physicians in Massachusetts 1975-1993. Am J Emerg Med 1996;14:341-345.

5. Freeman L, Antill T. Ten things emergency physicians should not do: Unless they want to become defendants. Foresight: Risk Management for Emergency Physicians. 2000;49:1-12.

6. Joffe MD. Emergency department provider fatigue and shift concerns. Clin Ped Emerg Med 2006;7:248-254.

7. Hay LJ. Risk Management 23.1 The 10 biggest legal mistakes physicians make regarding risk management. In: Babitsky S, Mangraviti JJ, eds. The Biggest Legal Mistakes Physicians Make – And How to Avoid Them. Falmouth, MA: SEAK, Inc; 2005:569-572.

8. Henry GL. Risk management and high-risk issues in emergency medicine. Emerg Med Clin North Am 1993;11:905-22.

9. Hoffman J. CRICO's handoff-related malpractice cases. Forum 2007;25:4.

10. Kuhn W. Malpractice and Emergency Medicine. Available at http://www.mcg.edu/som/clerkships/EM/PracticeIssues/Malpractice%20and%20Emergency%20Medicine.pdf. Accessed October 12, 2010.

11. Kamin RA, et al. Pearls and pitfalls in the emergency department evaluation of abdominal pain. Emerg Med Clin N Am 2003;21:61-72.

12. Rusnak RA, et al. Misdiagnosis of acute appendicitis: Common features in cases discovered after litigation. Am J Emerg Med 1994;12:397-402.

13. Henry GL. Be careful what you say! High-risk medical phrases. Foresight: Risk Management for Emergency Physicians 2004;60:1-12.

14. Sklar DP, et al. Unanticipated death after discharge home from the emergency department. Ann Emerg Med 2007;49:735-745.

15. Yale-New Haven Hospital & Yale University School of Medicine. Overview of the legal system. In: Risk Management Handbook. Available at http://www.med.yale.edu/caim/risk/handbook/rmh_legal_system.html. Accessed March 12, 2008.

16. Legal considerations. In: Weinstock MB, Longstreth R, eds. Bouncebacks! Emergency Department Cases: ED Returns. Columbus, Ohio: Anadem Publishing; 2006;455-465

17. Zurad EG. Don't be a target for a malpractice suit. Fam Pract Manag 2006:57-64. Available at www.aafp.org/fpm. Accessed March 13, 2008.

18. Pfaff JA, Moore GP. Reducing risk in emergency department wound management. Emerg Med Clin N Am 2007;25:189-201.

19. Pope HJ, et al. Missed diagnoses of acute cardiac ischemia in the emergency department. N Engl J Med 2000;342:1163-70.

20. Siff JE. Legal issues in emergency medicine. In: Tintinalli J, et al. eds. Emergency Medicine: A Comprehensive Study Guide. 7th ed. New York: McGraw-Hill Co. 2010.