Avoid These Clinical Disasters That Lead to Likely Lawsuit

Missed acute myocardial infarction (AMI) cases are usually top of mind when it comes to ED malpractice litigation, but other lesser-known clinical pitfalls also result in claims, warns Martin Ogle, MD, FACEP, senior partner and vice president of CEP America, an Emeryville, CA-based provider of acute care management and staffing solutions. “The only way to mitigate risk is to maintain an open mind in your differential diagnosis to things that are less common but potentially very dangerous,” he says. Here are some scenarios resulting in recent claims against emergency physicians (EPs):

• Anticoagulated patients who suffered minor trauma.

Patients with a head injury, or what appears to be a minor spine injury from a fall, have a much higher risk of dangerous or even fatal internal bleeding, which could result in an epidural hematoma and subsequent neurologic deficit, says Ogle.

“We have our own risk retention group that provides services for most of our EDs, and we have definitely seen a spike in those situations,” says Ogle. “The EP needs to be on heightened alert about identifying potentially life-threatening or neurologically damaging bleeding.”

Triage nurses must be sure the patient’s anticoagulated status is communicated to the EP, emphasizes Michelle Myers Glower, RN, MSN, a Wilmette, IL-based legal nurse expert and clinical nursing instructor at Loyola University Chicago.

“I have reviewed hundreds of medical records of falls, and I look for documentation on if the patient hit their head, whether they were anticoagulated, and that the CT of the head was ordered,” says Myers Glower.

Overlooking the critical piece of information that the patient is taking an anticoagulant can easily lead to a malpractice lawsuit against the ED, she warns. “Litigation comes when no one collects the history of anticoagulation or head injury and then no CT is ordered, resulting in a intracranial hemorrhage,” says Myers Glower.

• Ingestion of foreign bodies in children.

In the past, EPs have taken the approach that if an object had passed into the stomach, it would almost certainly find its way out without any intervention, says Douglas S. Diekema, MD, MPH, an attending physician in the ED at Seattle Children’s Hospital and director of education for the Treuman Katz Center for Pediatric Bioethics at Seattle (WA) Children’s Research Institute.

“But with ingestions of button batteries and small magnets, ED physicians have had to be much more careful in evaluating what has been ingested to assure that it doesn’t pose a risk,” he says. “These more dangerous ingestions require significantly more vigilance, and certainly pose a potential liability risk.”

EPs must be aware of the fact that some ingested metal objects represent a problem and may need to be removed, and they need to be able to recognize when they may be dealing with one of those objects on an X-ray, says Diekema.

“Finally, they need to involve the appropriate specialty — often a gastroenterologist or surgeon — when they have identified a button battery or magnet in the gastrointestinal tract, including the esophagus,” says Diekema.

• Missed diagnosis of acute coronary syndrome (ACS).

If a patient’s coronary arteries are stenotic, that patient may present to the ED with signs and symptoms suggestive of angina or an AMI. “If AMI is ruled out by serial EKGs and troponins, we still need to be thinking that the diagnosis could be ACS,” says Bruce Wapen, MD, an emergency physician with Mills-Peninsula Emergency Medical Associates in Burlingame, CA.

A patient’s chest pain might be caused by a narrowing of one or more coronary arteries that has not yet caused changes in the EKG or troponin levels, “and yet, the patient is a time bomb,” he explains.

If the EP strongly suspects ACS, Wapen says he or she should consult a cardiologist, who may want to take the patient for a stress echocardiogram contemporaneously with the ED visit. If it’s Saturday, the patient should be seen in the cardiologist’s office on Monday morning, with instructions to come back to the ED immediately for new or worsening symptoms, he says.

“Current guidelines say you don’t absolutely have to admit them to the hospital, but they do need a referral to a cardiologist for stress testing within 72-hours,” says Wapen.

• Diabetic ketoacidosis (DKA) precipitated by an underlying stressor or infection.

In one case reviewed by Wapen, a man presented to a university hospital ED with a sore throat and reported feeling weak and thirsty for several weeks. “The medical student sees the throat is bright red, but the ED attending says to do a focused exam and treat him for strep throat,” says Wapen. The patient died two days later of DKA. “This was the infection that tipped the scale and put a previously nondiabetic patient into a diabetic crisis,” he says. “The literature is full of examples of this.”

The lesson, says Wapen, is to listen carefully to the patient for clues that a serious malady may lurk behind a more obvious, minor problem, and do the testing to rule out the worst case scenario. “How hard would it have been to do a random blood sugar finger stick?” he asks.

• Epidural abscesses and infections resulting in neurological deficits, paraplegia, and quadriplegia.

“Historically, that’s generally been limited to patients with endocarditis or intravenous drug abuse,” says Ogle. “But we are seeing this more frequently in patients that don’t have those traditional risk factors.”

This could be due to more resilient antibiotic-resistant bacteria or an overall increase in immune deficiencies, says Ogle. He says that while it’s not realistic to perform a lumbar magnetic resonance imaging of the spine in every patient with low-grade fever and back pain, “EPs have to be cognizant that not all back pain is simple back pain. Of the 4 million patients we see a year, we now see a smattering of those cases. In years past, we virtually would never see a case like that.”

EPs need to be meticulous in their documentation in this situation, says Ogle, and confirmation of intact neurologic status is essential. “No explanation for a low-grade fever documented in the nursing notes, or lack of documentation of the presence of midline spine pain and/or tenderness, can create questions about the thoroughness of the ED encounter,” he says.

D. Jay Davis, Jr., JD, a partner at Young Clement Rivers in Charleston, SC, defended an EP in one case involving a patient who presented with back pain, fever, and some arm numbness after having recently fallen from his bunk. “Unfortunately, this patient was diagnosed with a fall and the abscess was missed. He eventually became paralyzed from T-9 down,” says Davis.

The patient had common explanations for symptoms of his back pain that were completely consistent with a musculoskeletal injury from a fall, notes Davis. “The doctor’s records looked like he assumed the musculoskeletal injury was the cause. He did not demonstrate in his chart a thoughtful process that showed he was ruling out the more dangerous causes.”

The EP failed to adequately document a thorough neurological exam. “In this instance, the patient had a fever. The doctor, in essence, ignored this and assumed the back pain was associated with the likely cause of falling out of his bed,” says Davis.

While the EP treated the fever with acetaminophen, there was no follow up or evaluation noted in the chart. “The doctor simply worked-up the fall,” says Davis. “He did not work-up the fever with equal vigor. His history did not address it. His follow up did not address it.”

Davis says that a good neurological exam and better work-up of the fever would have avoided this lawsuit. “As I have told many clients, bad outcomes drive these cases. In this instance, it was clear in hindsight that the fever was a significant finding,” he says.

In ED misdiagnosis cases, there is almost always a small sign or symptom that gets lost because the case looks so much like hundreds of others, says Davis. “Careful evaluation of all sign or symptoms is the best defense to a misdiagnosis case. Pay attention to that one symptom that doesn’t seem to fit the story,” he says.


For more information, contact:

  • D. Jay Davis, Jr., JD, Partner, Young Clement Rivers, Charleston, SC. Phone: (843) 720-5406. E-mail: jdavis@ycrlaw.com.
  • Douglas S. Diekema, MD, MPH, Treuman Katz Center for Pediatric Bioethics, Seattle (WA) Children’s Research Institute. Phone: (206) 987-4346. E-mail: diek@u.washington.edu.
  • Michelle Glower Myers, RN, MSN, Wilmette, IL. Phone: (312) 406-1239. E-mail: mmyersglower@aol.com.
  • Martin Ogle, MD, FACEP, Vice President, CEP America, Emeryville, CA. Phone: (949) 461-5200. E-mail: MartinOgle@cep.com.
  • Bruce Wapen, MD, Foster City, CA. Phone: (650) 577-8635. E-mail: Bdwapen@aol.com.