Legal Risks for EPs Who Fail to Obtain a Consult
Failure to obtain specialist consultation is one of the main recurring themes Ken Zafren, MD, FAAEM, FACEP, has seen over the years in reviewing medical malpractice claims against emergency physicians (EPs) as an expert witness.
"If the EP is in over his or her head and doesn't realize it, that's a recipe for disaster," says Zafren, emergency programs medical director for the state of Alaska and clinical associate professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center. Here are some actual malpractice cases alleging the EP's failure to obtain specialist consultation:
A young man was seen in the emergency department (ED) for a red, swollen, painful penis, and the physician's assistant prescribed treatment for a sexually transmitted infection and referred the patient to a county clinic. The patient failed to improve, and several days later, presented to the ED with Fournier's gangrene of the penis.
The physician's assistant should have consulted a urologist for this presentation, which was very atypical for a sexually transmitted infection, but quite typical for a bladder stone unable to pass the urethra, according to Zafren.
"This was a rare diagnosis, but one which the urologist would likely have been able to make and to have managed before the cellulitis progressed to gangrene," he explains. The patient required extensive debridement and reconstructive surgery, and the case was settled.
An EP ordered a CT scan with IV contrast for a middle-aged man with abdominal pain. The IV dye extravasated into the patient's wrist and hand, causing extreme pain and swelling of the hand.
"Although the pain was not relieved by a large dose of intramuscular opiate medication, the EP told the patient the pain would get better in a few hours and sent him home," says Zafren.
The patient returned a few hours later due to worsening pain, and was immediately diagnosed by a second EP with a compartment syndrome. The patient underwent emergency fasciotomy by a hand specialist.
"In the meanwhile, the abdominal pain resolved without treatment. The plaintiff prevailed against the EP at trial," says Zafren.1
A patient presented with a fever and very painful left prosthetic hip.
"The EP managed to diagnose pyelonephritis as the cause of the fever and hip pain," says Zafren. "The case was subsequently mismanaged by two hospitalists. The patient died from septic shock with multi-organ system failure."
One option for the EP in this case would have been to consult an orthopedic surgeon, who might have suggested imaging or performed a diagnostic arthrocentesis. "There was a huge effusion that was almost certainly present on the first visit. An ultrasound or CT of the hip would have shown the effusion," says Zafren.
A middle-aged man presented with a chronic large umbilical hernia that he had been planning to have repaired eventually.
"He presented to an ED with the hernia bulging out and very painful," says Zafren. The man had signs of small bowel obstruction, and the overlying skin was purple, indicating ischemic bowel. The EP recognized that the patient had a small bowel obstruction, and proceeded to attempt to reduce the hernia.
"It was the middle of the night," says Zafren. "She testified at deposition that she didn't call the surgeon because all the surgeon would have done would have been to attempt to reduce the hernia." At trial, accounts differed about her technique and the amount of pain this caused the patient, who was discharged home from the ED.
"He returned several hours later in extremis, septic, and with the hernia not reduced. He did not survive the emergency surgery, at which he was found to have a long section of dead bowel," says Zafren.
Zafren says that a surgeon might have attempted to reduce the hernia in the ED, but would most likely have recognized the strangulated hernia and taken the patient to the OR emergently to prevent bowel necrosis.
The EP had already been disciplined by the state medical board for the incident prior to the trial. In his report, the emergency medicine expert for the medical board quoted Tintinalli's emergency medicine textbook regarding the dangers of attempting to reduce a strangulated hernia.
"In fact, it is very unlikely that the EP reduced the hernia, which remained strangulated, causing continuing bowel ischemia," says Zafren. "The case was settled."
If the EP needs specialist consultation to manage a patient effectively, the EP should consult the appropriate specialist, underscores Zafren, and failure to do so could result in a successful lawsuit against the EP.
One indication for calling a plastic surgeon to close a wound on the face would be that the patient wants the closure done by a plastic surgeon. "If there is a bad result, or even a perceived bad result, it is conceivable that the patient would sue the EP and the plastic surgeon," says Zafren. "But more likely, the EP would not be sued or would be dropped."
In order to prevail, the plaintiff must prove that the EP managed the case incorrectly, adds Zafren. If an EP is reasonably sure that a patient with abdominal pain does not have a surgical abdomen, the EP can send the patient home with appropriately close follow up and indications to return to the ED. "If the EP isn't sure, the EP should consult a surgeon," he says.
If a patient is seen early in the course of a surgical condition, such as appendicitis, the diagnosis may not be clear yet. "It is common practice to discharge a patient that might have a very early appendicitis with scheduled close follow up in the ED or with the patient's own physician after several hours, with the warning to return to the ED if the pain is not well-controlled or worsens," says Zafren.
- Figueroa v. Highline Medical Center et al. Superior Court of King County, WA. No. 08-2-43576-8 KNT.
For more information, contact:
- John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. E-mail: JHBurton@carilionclinic.org.
- Scott T. Heller, Esq., Reiseman, Rosenberg, Jacobs & Heller, Morris Plains, NJ. Phone: (973) 206-2500. E-mail: SHeller@rrjhlaw.com.
- Ken Zafren, MD, FAAEM, FACEP, Alaska Native Medical Center, Anchorage, AK. Phone: (907) 346-2333. E-mail: email@example.com.