Mitigate Legal Risks of ED “Bounce Backs”

Don’t make dangerous assumptions

Lab work was ordered for a patient who presented to an ED after having experienced her first seizure, but it wasn’t reviewed until after the patient was discharged.

Later that same day, the patient was brought back to the ED after a second seizure, at which time no one checked the results of the prior lab work. New lab work was ordered after an intravenous line was inserted and a half normal saline drip started.

“The patient was taken for a radiographic study, during which she suffered irreparable brain damage due to untreated hyponatremia,” says Robert J. Conroy, JD, an attorney at Kern Augustine Conroy & Schoppman in Bridgewater, NJ. “Subsequent review revealed that both labs reflected the patient’s abnormally low serum sodium levels. The patient died, and there was a substantial settlement.”

If the EP had simply reviewed the chart and the earlier lab reports, this quickly would have revealed that the patient was hyponatremic, and might have permitted a timely treatment to reverse the patient’s course, says Conroy.

For recently discharged ED patients, Conroy says that “the number one problem from a liability perspective occurs when no one, including the EP, follows up on what occurred during the previous ED visit.”

The EP should never assume that a prior workup was followed up on, or that studies ordered previously were reported or read, adds Conroy.

“If something happens later on, it gives the patient a chance to say, ‘This was a second or third chance for the EP to make this diagnosis,’” says Michelle M. Garzon, JD, a health care attorney at Williams Kastner in Tacoma, WA. “The EP’s culpability is stronger on each subsequent readmission.”

EPs should consider these risk-reducing strategies if a patient has recently been evaluated in the ED:

• Gather information about the prior ED evaluation.

“This means going beyond just asking the patient what happened during that visit,” says Roger J. Lewis, MD, PhD, FACEP, a professor in the Department of Emergency Medicine at Harbor — UCLA Medical Center in Torrance, CA. “You are already in a situation in which the prior visit appears to have failed to completely address the patient’s medical complaint.”

This might involve a thorough review of information within your own hospital’s information system or requesting information from another ED at which the patient was seen, with appropriate permissions, says Lewis. Document the information about the prior visit and the fact that you have reviewed that information,” he says.

• Don’t assume that a prior diagnosis or treatment plan was correct or appropriate.

During your own assessment and the development of a management plan for the patient, Lewis says to avoid the cognitive error of premature closure, in which the diagnoses reached during the prior evaluation are the only ones considered in the current evaluation.

“Given that the patient has re-presented to the ED, the patient deserves — and it is in everybody’s best interest — for the current physician to carefully consider the possibility that the prior diagnoses were either correct, incomplete, or incorrect,” says Lewis.

Garzon says that she has seen plaintiffs testify that the EP didn’t take them seriously because they come to the ED often. “That’s an accusation that plaintiff lawyers like to be able to lodge,” she says. “EPs should be careful to keep bias out of their decision-making. It is good to keep that top of mind.”

• Regardless of your opinion, avoid any appearance of criticizing the prior evaluation.

Criticizing the prior evaluation doesn’t do the patient any good, and, if there is a bad outcome, it certainly doesn’t protect the EP in any way, according to Lewis. “Also, it’s not really intellectually honest,” he says. “You weren’t there at the time those treatment decisions were made. There is no way you can know for certain whether they made sense in the clinical context at the time.”

If a patient believes the previous EP made a mistake, Lewis recommends stating, “I’m not in a position to know whether that’s true or not, but what I can do is address your symptoms today.” “Focus both the patient and your evaluation on their current medical condition, not on criticizing earlier care,” he says.

If the EP criticizes the initial EP for an inadequate assessment, the initial EP is likely to respond in kind. “Criticizing each other in the medical record makes it extremely easy for physicians to be pitted against each other during any subsequent legal action,” says Lewis.

If something was overlooked during a visit that occurred in the same ED, such as a fracture missed on an X-ray, Garzon says the EP should consider mentioning it to the initial EP informally.

“Do this just as an education and heads-up that this was a near miss,” she advises. “Many people would appreciate that feedback, but I would not document anything in the chart.”