EPs Can Protect Themselves Legally From 'Problem' Patients
Careful charting makes claims defensible
An inebriated frequent emergency department (ED) patient, discharged after a cursory examination and no treatment, was found dead in the hospital's parking lot a few hours later. "A more thorough examination might have discovered evidence of an impending myocardial infarction," says Dan Groszkruger, JD, MPH, principal of Solana Beach, CA-based rskmgmt.inc.
The surviving family members sued for wrongful death based on negligent failure to diagnose and treat the patient's heart attack. "The cursory nature of the examination and lack of treatment harmed the ED's defense," says Groszkruger.
While some frequent ED patients are "annoying, manipulative, and even sophisticated in how they access ED services," says Groszkruger, they do not represent a population any more likely to sue EPs than other ED patients.
"These patients are more likely to threaten litigation compared to other patients. But in my experience, the threats always were 'hollow' and did not lead to actual lawsuits," he adds. Below are some "problem" patients that pose unique liability risks for EPs:
• Patients suspected of drug-seeking.
"With a 'drug-seeker' patient, EPs hear complaints and a history of symptoms or problems which normally would justify narcotics," says Groszkruger.
If the EP suspects that such complaints are false or exaggerated, says Groszkruger, "only diligent recognition and documentation of physical exam findings and test results, inconsistent with claimed symptoms, will justify a refusal to prescribe narcotics or proposing alternate modes of treatment not including pain killers."
If the patient states that her headache is "excruciating," and reports it as a 9 on a scale of 1 to 10, how might a skeptical EP challenge such symptoms in his or her documentation? "One way is to record observations which are inconsistent with the claimed level of pain," says Groszkruger.
EPs are not required merely to take the patient's word for their pain level, if other factors cast doubt on the legitimacy of the complaint, he adds. "Clinicians are put in a tough spot if they choose not to treat a complaint of severe pain, based only on a 'hunch' or their dislike for the patient," he says.
Thus, says Groszkruger, the EP's documentation should describe any factors that are inconsistent with the patient's claimed pain level — for example, the 'excruciating headache' patient frequently steps outside to smoke a cigarette.
EPs generally are wary about recording chart notes that reveal skepticism about their patient's veracity, adds Groszkruger. "Such doubts make clinicians uncomfortable, because having doubts may appear inconsistent with a genuine interest in treating an ED patient or controlling pain," he says.
However, says Groszkruger, "experts generally suggest that objective charting that accurately describes behaviors and actions, rather than suspicions, theories, or conjecture, is a best practice."
Groszkruger advises that "truth is the best defense" when a skeptical EP is hesitant to administer pain killers to a suspected drug-seeker. One example that he observed was a young patient chatting on her cell phone who suddenly grabbed her head and began loudly complaining of excruciating headache when the EP arrived.
"I suppose it is possible that her pain was not as severe while she was chatting on her cell phone. But documenting her behavior minutes before her pain complaints should at least raise a question regarding her veracity," he says.
• Psychiatric patients, or those who display irrational behaviors triggered by panic, fear, anxiety, or brain trauma.
"None of these are likely to sue more frequently than an average ED patient, to my knowledge," says Groszkruger.
Patients with multi-system medical and psychological issues are most likely to be unsatisfied with the results of medical intervention, however, says Joan Cerniglia-Lowensen, JD, an attorney at Pessin Katz Law in Towson, MD.
"Unhappy patients are much more likely to file a lawsuit against an emergency provider with whom they have a brief relationship," she says.
• Hyper-aggressive personalities.
Remaining calm in the face of provocation is always a good idea, says Groszkruger, and may decrease the chance of a premature action or decision that is not in the patient's best interests, provoked by mere impatience or frustration.
"Aggressive individuals are known to threaten legal action, but only rarely do they follow through on such threats," he adds.
Some patients tell the EP that they are unhappy and intend to sue. "Under that circumstance, the EP should be extremely careful to provide adequate documentation," says Cerniglia-Lowensen.
The exact words of the patient, both in providing history and in their response to treatment, should be utilized whenever possible, she advises.
An example would be a patient with a history of polypharmacy who is seeking additional medications and threatens to sue the EP for refusing to prescribe these. "Additionally, these are the patients with whom the EP should spend more, not less, time communicating the recommended treatment plan," says Cerniglia-Lowensen.
• Patients concealing hidden agendas.
For a variety of reasons, some ED patients volunteer false information or provide "selective" histories, complicating accurate diagnosis and treatment. "Again, such patients are not commonly perceived as likely to pursue medical malpractice litigation," Groszkruger says.
Groszkruger says a rare but known risk is a patient who visits the ED with litigation in mind. "I have heard of disability rights attorneys sending patients to 'set up' a hospital ED for a lawsuit based on ADA [Americans with Disabilities Act] shortcomings. For instance, the ED might lack handicapped access, or facilities that are not wheelchair accessible.
"Theoretically, class action lawyers could steer patients to EDs with an expectation of discovering EMTALA violations," he says.
Groszkruger advises EPs to educate ED personnel about how to deal with their most likely category of "difficult" patients. "Specific EDs generally know what type of 'difficulties' they are likely to encounter, and should prepare accordingly," he says. For instance, most urban EDs frequently encounter drug-seekers as compared to suburban or rural EDs, which are more likely to encounter an occasional mental health or violent patient.
• Patients who fail to follow up.
When an EP reviewed past medical records of a patient presenting with an upper respiratory infection, she discovered that this same patient presented on four previous occasions with extremely elevated hypertension.
"On each occasion, the patient indicated that she would follow up with her primary care provider," says Cerniglia-Lowensen. "There was no evidence that this follow up had ever occurred."
The EP didn't believe admission to the hospital was necessary and, once again, attempted to educate the patient regarding hypertension, but no provider follow-up occurred. Approximately 30 days later, the patient suffered a massive cerebral vascular accident and filed suit against the EP.
"The cause of action presented by a very debilitated patient was that the provider should have known that follow up had not occurred in the past, and was most likely not going to occur under these circumstances," says Cerniglia-Lowensen.
The case was settled before trial because of the EP's inadequate documentation. "I would have liked to have seen a note indicating that the provider discussed with the patient her past failure to follow up, the risks of inaction, and the fact that the provider gave the patient potential providers for follow-up care," says Cerniglia-Lowensen.