"If the EP Had Only Told Me" Is Consultant's Likely Defense
"If the EP had only told me, I would have come right in and admitted the patient," is what a consultant is almost certain to claim if named in a lawsuit resulting from a bad outcome that occurred after a patient was discharged from the ED.
In addition to claiming that the EP did not accurately convey the severity of the patient's condition, the consultant might also claim no physician-patient relationship existed.
"The EP would likely still be liable if the consultant gave advice with which the EP disagreed," adds Ken Zafren, MD, FAAEM, FACEP, FAWM, 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.
For example, the EP would likely be liable for sending a patient home when the EP believes a patient should be admitted, even if the consultant wants to send the patient home without having seen the patient.
"Unless the consultant can convince the EP by telephone that outpatient management would be safe, the consultant should see the patient and discharge or admit based on the consultant's examination," emphasizes Zafren. "If the consultant hasn't seen the patient, the EP would be liable."
If there is a disagreement, the EP is not obligated to discharge the patient, underscores Zafren. "Actions speak louder than words, and the best reaction to a consultant's advice with which the EP disagrees is to hold, admit, or transfer the patient," he says. "The EP remains in charge until the patient is admitted by the consultant."
At that point, the EP's liability is minimized, says Zafren, assuming that the patient was admitted to the correct consultant.
The best way to make claims based on the consultant's recommendations more defensible is thorough documentation, says Zafren. This should include what the EP told the consultant and what the consultant told the EP. "This is especially important when the consultant refuses to come to the ED to examine the patient," he says.
Don't document rants
John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, has reviewed several charts in which the EP gave too much detail about a heated discussion with an admitting physician regarding a patient's admission. "It may have indeed occurred, but it just looks bad in the chart," he says.
For example, if the admitting physician refuses to admit a patient and, in the course of the discussion, launches into an extensive rant about Obamacare, payer status, revenue, and how the future of health care is abysmal, then the record does not need to document the rant.
"Rather, a simple notation stating in the record that the physician refused to admit the patient, citing payer status as an issue, would suffice," says Burton.
Burton says that pursuing unprofessional behavior, such as the fact that the consultant shouted expletives, should be directed to the local medical staff office and not detailed in the record.
"However, sometimes there just is not an alternative to documenting a difficult interaction," he says. "When this is the case, then at least let the other provider know that you will be documenting this in the record."
Burton says that EPs should state this matter-of-factly, without the implication that it is a threat to the other physician.
For example, if the EP calls a physician about a patient who the EP feels strongly should be admitted, but after discussion or evaluation of the patient, the admitting physician "refuses" to admit the patient, the EP will want to document that he thought the admission should be undertaken and that the admitting physician disagreed.
Before placing this documentation in the chart, however, it is prudent for the EP to tell the admitting physician that he or she disagrees and will document in the record that the EP thought the patient's best interests would be served by admission.
The EP need not enter an extensive argument or rationale for his or her own opinion in the record, says Burton, and should simply state the opinion.
"Oftentimes, once the consultant understands that the documentation will reflect the actual events and opposing positions, they will retreat to the more conservative treatment option; in this case, admission," says Burton.
At times, EPs not only don't get the help they seek from a disagreeable admitting doctor, but EPs are also treated condescendingly. In these cases, says Pete Steckl, MD, FACEP, director of risk management at EmergiNet in Atlanta, GA, "the atmosphere is ripe for taking out your frustrations by documenting the conversation in an accusatory or unprofessional manner."
It is tempting for EPs to believe they are covering themselves legally by documenting a breach in conduct on the part of the consultant, but in actuality, this can place the EP in legal jeopardy, says Steckl. "Pointing fingers serves only one party. That is the plaintiff's lawyer who, when he sees smoke, just redoubles his search for fire," he says.
Should the admitting physician's care come into question as a result of legal action, all care received by the patient will be scrutinized. "Should there appear a lapse in management, you could find yourself involved in the lawsuit you were attempting to avoid," says Steckl.
Steckl says that EPs should document the discussion in a dispassionate, "just the facts" way and do what is necessary to get the patient the care that he or she needs.
"Should your grievance with the medical staff member rise to a high enough level, discuss with your facility's medical director the possibility of filing a separate formal complaint through an 'incident report' type of mechanism," he advises.