Step in Before Patient Leaves ED Unhappy: Stop Possible Suit
In response to an irate emergency department (ED) patient saying, "I've been waiting here for two hours and 40 minutes," the emergency physician (EP) glanced at the chart and said curtly, "You've actually been here for two and a half hours."
"That's not the right way to approach people. You've maybe won a mini-battle, but you've lost the war," says Kevin Klauer, DO, EJD, who overheard this conversation.
EPs need to "validate the patient's concerns," underscores Klauer, chief medical officer at Canton, OH-based Emergency Medicine Physicians. "It's not just about making people happy. It's about making people happy as a risk-management strategy."
EPs should ask themselves as they leave their shift if they are going to wish they took the time to resolve a particular issue. "You are the medical provider who was going to see them, or already started to see them, and they are leaving unhappy, most likely against medical advice (AMA)," says Klauer.
EPs have a choice, says Klauer: "To spend 10 minutes now with service recovery, or to spend months of your life later explaining to a jury how you provided good medical care."
While not all patients who leave the ED unhappy are going to file a lawsuit, says Klauer, "you are selecting out a high-risk group of patients who may very well sue if they do have a bad outcome or problem." Here are practices that can reduce the EP's legal risks:
Enlist the help of others.
When facing a potential adversarial patient care encounter, the EP "should not try to go it alone," says Rade Vukmir, MD, JD, FACEP, FACHE, chairman of education and risk management at ECI Healthcare Partners, a Traverse City, MI-based provider of emergency department management services. Instead, enlist the assistance of the charge nurse, patient flow coordinator, case manager, or another independent third party to be present and assist the EP in any further patient care discussions.
The EP can make a first attempt to defuse the situation, "but if you are not making any headway, then you start involving other people," says Jonathan D. Lawrence, MD, JD, FACEP, an EP and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA.
Lawrence advises enlisting the help of a nursing administrator, charge nurse, clergy, or social worker. "Clue them in on what's going on, and let them take care of the patient or family," he advises. "Be sure that you fully inform the person who's going to be involved."
Always include the patient's family.
Often it is a family member, not the patient, who instigates a malpractice lawsuit. "If the family has unrealistic expectations, those issues have to be addressed," says Lawrence.
Give the patient or family a chance to be heard.
Vukmir says to ask, "What else can I do for you? What would you like to accomplish in this visit?" and to direct these questions to the family "as much as the patient," he says. Obviously, this approach requires the patient to consent to this family discussion. "Go through their expectations," says Vukmir. "A lot of times, they are reasonable and easily attainable if discussed."
It may be that the EP has provided excellent care, "but who wants to have that debate after the patient has contacted an attorney?" asks Klauer. He tells patients, "I'm really sorry you are unhappy. Tell me how I can help you. And while we are talking, can I get you something to drink?"
"In those couple of statements, you are addressing several things," he says. "You are listening to the patient, you are being reasonable, and you are addressing their comfort," he says.
Next, he underscores to the patient that he or she is just as important as everyone else, but that other ED patients had more time-sensitive problems. "If they still don't get it at that point, I use some examples to really appeal to their compassion," Klauer says.
Do what you can for patients leaving AMA.
If someone is angry, they are likely to walk out of the ED. "Having them walk out without having the concern addressed is not a good risk-management strategy," says Klauer.
Vukmir says the EP should recognize the limitations of the AMA process. "Even though the AMA form is signed, it is clearly litigated as a point of controversy," he warns. "Patients allege that they truly didn't understand the repercussions of their decision."
Vukmir says EPs should advise patients that they are always welcome to return to the ED, and offer the patient any help they can with follow-up care. "Prescribe medications and follow up within reason, so you can still help with the case," Vukmir says.
Avoid inflammatory charting.
Is an argumentative patient saying wildly inappropriate things? If so, document only what is medically necessary and appropriate, based on the patient's condition.
"If the patient makes a statement, you can put that direct quote into the document," says Vukmir. "But editorializing the patient's thoughts, your own impressions, or those of other health care providers is not appropriate."
These comments can make it more difficult to defend a malpractice claim against the EP. "If in addition to the standard documentation of the patient's evaluation there is a two-page addendum that describes non-medical, extraneous aspects of the event, that can potentially damage the EP's credibility," Vukmir explains.
Charting the fact that a patient used profanity and the EP tried to address their concerns is acceptable. "But the minute you start to get into, 'They were horrible in the way they spoke to me and our staff, so we refused to provide them further care because of their inappropriate behavior,' — those type of comments will never help you," says Klauer.
Emotion and innuendo "should never find its way into the medical record," says Klauer. "Those can really come back to bite you, particularly if those end up being wrong. Stick to the facts."
While a jury might understand why an EP vented in the medical record, it doesn't mean they are going to be forgiving when they have to make a decision. "They expect you to function at the level of training and expertise and respect that you are given," says Klauer. "If you are going to be in a situation like that and are seen as acting inappropriately, they are not going to give you much of a pass."
On the other hand, if the patient was intoxicated and verbally abusive, and this is documented objectively in the record, "it really speaks for itself," says Klauer. Such documentation can weaken the plaintiff's case because it makes the patient appear less credible.
Don't argue with the patient or family.
Comments such as "I'll call my lawyer and sue you" are often empty threats, but the EP shouldn't respond with angry comments such as "Go ahead!"
"You don't want to do any of that," says Klauer. "Ignore the inflammatory statement that the patient or the family member made, and don't engage in arguments."
If a patient says he or she has contacted legal counsel, stop the conversation there.
"It should end nicely, and it's not that you can't have further discussion. But you should get hospital risk management involved before you do," says Klauer.
Klauer says that having discussions with the patient, the family, and legal counsel present before a claim is filed is an excellent approach. "But you have to do so with risk management and legal counsel present so that you don't put yourself or the hospital in an untenable situation, because it's all discoverable," he says.
For more information, contact:
- Kevin Klauer, DO, EJD, Chief Medical Officer, Emergency Medicine Physicians, Canton, OH. E-mail: firstname.lastname@example.org.