Do You Treat Frequent ED Patients Differently?

Practice can lead to failure to diagnose suit

The most common scenario in malpractice lawsuits involving frequent ED patients is failure to adequately diagnose, treat, and stabilize an emergent medical condition, says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA.

Burton has reviewed many claims against emergency physicians (EPs) involving patients who frequently presented with low back pain in the ED. "In each visit, the patient wants pain medications or tests that the ED staff and physician feel are both unwarranted and unnecessary," he says.

This same patient then presents with what appears to be their usual chief complaint, back pain, but now has fever, radiating pain, shortness of breath, or chest pain.

"If the patient is an IV drug abuser, it will be a missed epidural abscess," says Burton. If the patient is older, it may be a missed myocardial infarction or congestive heart failure.

"The scenarios are multiple, and I've seen this same type of patient multiple times in legal suits against emergency physicians," says Burton.

The plaintiff typically asserts that the EP did not meet the standard of care by adequately examining the frequent ED patient. "The claim then proceeds to damages, due to the failure to treat an emergent condition and subsequent plaintiff losses in life or limb," says Burton.

Closed Mind "Very Risky"

There is no generally agreed-upon definition for "frequent user" in the ED population, notes Burton. Patients might be considered frequent based on a set number of visits per year, per month, per week; a recurrent set of visits for the same complaint; or a recurrent set of visits around a generalized diagnosis or category of pathology.

"It is generally recognized that there are certain common themes to the frequent flyer' patients," adds Burton. These include complex medical patients, noncompliant medical patients with serious medical conditions, patients with complaints that have defied traditional attempts in their community at diagnosis and treatment plans, "mixed" patients with medical and psychiatric diagnoses, psychiatric patients that are poorly controlled as outpatients or in those whose pathology renders them dependent upon the medical system, and "drug seekers."

Burton has reviewed lawsuits against EPs alleging racial, gender, or sexual discrimination. The plaintiffs asserted that they were treated inappropriately as a consequence of illegal discrimination based on race, gender, or other factors protected by discriminatory laws.

"I have recently seen a few EMTALA claims as well, with plaintiffs alleging failure of the physician to meet EMTALA requirements in their evaluation of the patient," reports Burton.

Addressing a frequent ED patient with a foregone conclusion, diagnosis, or plan without even walking in the room is "very risky," warns Burton.

Many EPs look at the triage note, and perhaps the past medical history, including past ED encounters, prior to walking in to see the patient. "This is good medicine, and is enabled by a strong electronic medical record," says Burton.

However, EPs, at times, fall into the trap of allowing this information to close their mind to all new considerations before they walk in to see the patient, conduct an interview, perform an examination, and formulate a diagnostic plan.

"Communicating one's impressions to the ED staff not only closes one's own considerations but also the entire treatment team," says Burton.

It's reasonable for EPs to express concerns to staff, such as stating, "I'm concerned that this patient may be here for drug-seeking purposes. I'll go speak to them." "In contrast, stating This patient is bad news. He's here all the time and I'm going to go in and toss him out,' is just a bad idea," says Burton. "Don't overly bias yourself or members of your ED treatment team."

Legal risks arise when frequent ED patients present with conditions that do not fit their historical issues and, therefore, require completely different treatment plans, says Burton.

EPs all feel at times that frequent ED patients consume valuable time that should be directed to other, sicker patients, he acknowledges.

"However, we also all have our stories of when these exact patients surprised us with a new, often unstable medical condition that required a completely different plan from our usual approach," says Burton.

Difficult Defense

It is hard to conduct a strong defense when the defendant physician's primary strategy rests upon the fact that the patient was a "frequent flyer," says Burton.

While prior visits and past history can play a role in the medical decision-making for any patient, EPs are held to a standard that treats each encounter as unique, he explains.

Burton says that medical decision-making should be addressed clearly in the chart. For instance, the EP could document, "This patient presented today with a headache that he characterizes as typical of the headaches which he has had during his last 37 visits. I reviewed many of these visits and see no atypical features today from his usual presentation."

"Don't be too specific and detailed," advises Burton. "Remaining generalized will prevent or assist when one enters a tit-for-tat type argument in review or litigation."

Occasionally, EPs treat patients who are frequent flyers for atypical chest pain that only improves with opiate therapy. "In these records, one should state clearly what was told to the patient and the rationale in the decision-making," says Burton.

The EP might chart, for example, "I described to this patient that their evaluation today did not reveal findings suggestive of high risk for ischemic or thromboembolic causes. I also reviewed with them my findings in their medical record with prior visits that have included multiple tests and treatments for this atypical chest pain. I described to the patient that I did not believe opiate therapy was appropriate for chest pain either as a primary or ongoing treatment plan, either in the ED or outpatient. I also apologized for any mixed signals the patient has received in this regard, given that their many visits to the ED have included opiate intravenous therapy. I reviewed our ED pain policy with the patient, with specific reference to treatment of chronic and recurrent pain, and our policy that we will not provide opiates for these patients."

"This may seem like a major documentation effort, but the effort up front can make a substantial difference in defending these decisions in any venue at a later date," says Burton.

Having nursing staff, security, or technicians available to witness all interactions with patients can be very helpful in the EP's defense, adds Burton.

Carilion's ED launched a medical scribe documentation program approximately three years ago, never imagining that this would assist in defending EPs against false, spurious allegations.

"However, we have frequently found ourselves asking a scribe for a statement regarding their observations and recollection of a specific encounter that is later disputed between the physician and patient statements," says Burton.