EP vs. Consultant: Who Said What to Whom?

Suit’s outcome could hinge on who documented discussion

Did an emergency physician (EP) have a telephone consult without requesting that the specialist see or examine the patient? If a malpractice lawsuit is filed criticizing the EP’s discharge decision, says Bruce A. Vande Vusse, JD, an attorney at Foster Swift Collins & Smith PC in Farmington Hills, MI, “that creates an issue of how much weight should the EP have given to those conversations, when the consultant didn’t see the patient face-to-face.”

When both the EP and consultant are named in a suit, “this is almost always going to lead to a tenuous co-relationship in the context of litigation,” says Vande Vusse. “Ultimately, these cases can end up with tension between the physicians, with both pointing fingers at the other as the more responsible decision maker.”

EPs generally claim they relied on the expertise of consultants, and consultants typically counter that EPs shouldn’t have relied on them because they didn’t see or personally evaluate the patient, or weren’t given all the pertinent data, he says.

Vande Vusse recently represented an on-call pediatrician who was called by an EP about a 9-month-old child who was eventually diagnosed with Haemophilus influenzae type F meningitis. “The EP had made a determination that he wanted to discharge the patient, and was using the pediatrician largely as a rubber stamp to verify the EP’s analysis,” he says.

When the two physicians were deposed, there was a dispute in terms of what the pediatrician was told. The EP’s note summarized what was discussed, but didn’t include everything contained in the chart, and the in-house pediatrician consultant didn’t take any notes about the phone conversation with the EP.

“The only written record was the ED doctor’s. A significant question became how much responsibility the consultant had for the discharge decision,” says Vande Vusse. “Here’s where you can have a real fight between the two physicians about whether the EP was entitled to rely on the ‘recommendation’ of the consultant.”

The pediatrician pointed out that the EP had the patient in front of him, access to imaging studies and laboratory results, had not asked the pediatrician to examine the patient, and seemed to be looking for approval of a discharge decision that the EP had already made.

“The pediatrician consultant said, ‘I wasn’t making a decision about how sick this kid looked or whether she needed to be admitted. I just gave the EP limited advice, based on what he told me,’” Vande Vusse says.

The EP’s defense was made more difficult because he didn’t ask the consultant to come see the patient, even though the consultant was in the hospital at the time, giving the impression that he had already made his discharge decision without relying much on the pediatrician’s input. “When the case settled in mid-2012, the pediatrician consultant was dismissed without payment, and the EP paid in the six-figure range,” says Vande Vusse.

When an EP consults with a specialist, he or she should ask the consultant, “Based on this, do you think you ought to come in and see the patient?” and document the consultant’s response, advises Vande Vusse.

“Whoever documents the details of what was discussed has an advantage,” he says. “If the consultant is sitting at home or in the office and isn’t privy to the person’s chart, he or she isn’t likely to be making notes. They will be relying on their memory of the conversation, not a contemporaneous written record.”

Plaintiff’s attorneys will often focus on what was not documented, and will argue that failure to provide appropriate information to the consultant resulted in bad decision-making. “If the consultant claims he wasn’t told something, but the EP’s charting indicates otherwise, the EP’s testimony is probably more credible,” says Vande Vusse.

EP Found Negligent

Janice M. Ginley, assistant claims manager for MIEC, an Oakland, CA-based malpractice carrier, handled a claim involving an infant who presented with a two-day history of fever and new-onset focal seizure. The EP performed a lumbar puncture, obtained laboratory studies, and contacted the child’s pediatrician to report the history and findings.

“The private pediatrician advised the EP that he would manage the course of care from that point,” says Ginley. “The EP relied on direction given to him by the pediatrician.”

Aseptic meningitis was the working diagnosis, with no CT scan obtained or requested despite the reported history of seizure, and herpes encephalitis was not included in the differential diagnosis. “The pediatrician requested transfer to a higher level of pediatric care where the pediatrician had privileges,” says Ginley. “The child remained in the ED for almost five hours prior to transfer.”

The admitting resident at the pediatric hospital recommended a CT scan on admission, but the pediatrician didn’t obtain one until 36 hours later, and the child was diagnosed with herpes encephalitis. “Despite intensive treatment, the child experienced profound brain damage,” says Ginley. A lawsuit was filed against the EP, the hospital, and the pediatrician, alleging failure to obtain a CT in the ED for history of focal seizure, which would have provided evidence of herpetic brain lesions. The plaintiff also alleged the EP had failed to provide acyclovir in the earliest hours of care, which would have prevented the brain injury.

The pediatrician settled for his policy limits in advance of trial. “Despite strong support on standard of care and causation for our insured EP, who relied on the direction of the pediatrician in the early hours of care, a jury found him negligent at trial, and awarded a substantial seven figure verdict,” says Ginley.

While the EP had good documentation of the verbal consult, the pediatrician did not. “Had the child not been severely injured, the likelihood of the EP’s dismissal from the suit would have been higher,” says Ginley.

While the EP had reasonably good documentation of the verbal consult with the pediatrician, at trial the plaintiff focused on what was not documented in the discussion with the pediatrician (i.e., herpes encephalitis and the treatment that was not provided, which might have made a difference in outcome).

“Failure to have a thorough differential diagnosis with complete documentation in an extremely sympathetic case led to an adverse verdict,” says Ginley.

Inadequate Documentation

Claudia Dobbs, loss prevention manager at MIEC, says she often reviews charts with inadequate documentation on telephone consults with EPs, such as, “Spoke with cardiologist, Dr. x.” Dobbs says that EPs can significantly decrease their liability by clearly documenting the verbal consult and how it affected their medical decision-making.

EPs should document details of the conversation with the consultant, review of pertinent differential diagnoses, the patient’s course of treatment, the informed consent discussion with a patient and participating family members, and specific aftercare instructions, she advises. “Documenting the patient’s understanding of the treatment plan and agreement also is protective,” adds Dobbs.


For more information, contact:

  • Claudia Dobbs, Loss Prevention Manager, MIEC, Oakland, CA. Phone: (510) 596-4956. E-mail: claudiad@miec.com.
  • Janice M. Ginley, Assistant Claims Manager, MIEC, Oakland, CA. Phone: (510) 596-4936. E-mail: janiceg@miec.com.
  • Bruce A. Vande Vusse, JD, Foster Swift Collins & Smith PC, Farmington Hills, MI. Phone: (248) 538-6330. E-mail: bvandevusse@fosterswift.com.