Info Often Missing from ED Charts, Forcing Settlements
Every emergency physician (EP) has heard the warning, "If it’s not documented, it’s not done," but malpractice attorneys still report seeing crucial pieces of information missing from emergency department (ED) charts.
"Despite the time constraints every [EP] faces, the importance of a complete chart that accurately tells the story’ of the patient’s ER encounter cannot be overstated," says Gary Genovese, JD, an attorney at Conrad & Scherer in Ft. Lauderdale, FL.
Missing documentation results in EPs being sued who otherwise would not be, and EPs having to settle otherwise defensible claims. "Time and again, I have seen the lack of completeness of a chart come back to haunt the physician, leaving him or her at the mercy of a swearing contest with the patient," says Genovese.
A complete chart doesn’t guarantee that an EP won’t be sued. However, it may dissuade a plaintiff attorney from taking the case, and will certainly make the defense attorney’s job much easier, says Genovese.
Here are some items that defense attorneys frequently find are missing from ED charts, making otherwise defensible claims strong candidates for settlement:
• All pertinent positives and negatives aren’t recorded, with boxes left unchecked for systems or symptoms which were assessed or examined by the physician.
This makes it appear that the EP failed to fully assess the patient, or did so hurriedly and missed something. "A good plaintiff attorney will fully exploit such an omission," says Genovese.
After the assessment has been charted, EPs should take a moment to review it for completeness and accuracy. "Do this with the view that you may have to someday explain or defend everything that you did for this patient," advises Genovese.
• The EP’s diagnosis, reasons for the diagnosis, differential diagnoses, and treatment options aren’t documented.
This documentation can be used to counter the plaintiff attorney’s argument that the EP failed to consider an alternative diagnosis.
"It is difficult and sometimes impossible to list every potential diagnosis presented by the patient’s symptom complex," acknowledges Genovese. "Nonetheless, thoroughness is never a bad thing when it comes to ER charting."
• The recommendations made to the patient for further care aren’t included in the chart
The chart should make abundantly clear that the patient and family were clearly instructed on follow-up care, the timing of such care, and the provider of that care, including an immediate return to the ED if symptoms persist, worsen, or change in any way.
"The completeness of that ER chart will defeat the argument that the patient did not know what she was supposed to do for further medical attention when she left the hospital," says Genovese.
• "Normal" exam findings are incorrectly indicated.
"If you are using templates, be sure that you look at everything. It is a frequent error to put in normal exam findings’ by accident,’" says Jennifer L’Hommedieu Stankus, MD, JD, an attending physician at Group Health Physicians, a Seattle, WA-based multi-specialty group practice, and former medical malpractice defense attorney.
For example, if a patient has a long-standing heart murmur and the EP documents "heart rrr [regular rate and rhythm], no mrg [no murmurs/rubs/gallops]," it calls the entire examination into question.
"If you didn’t document that correctly, there will be a question about what else you failed to examine," says L’Hommedieu Stankus.
• A review of systems is not documented.
"Believe it or not, major portions of records are often simply not completed," L’Hommedieu Stankus says. "Go back through every chart before you place your final signature."
• The chart fails to indicate that radiologic or laboratory findings were communicated to the patient.
This is particularly important for findings that won’t be addressed during the ED visit, but which require further evaluation, such as a lung nodule. "If you release the patient, for whatever reason, prior to studies coming back, be sure to document how the patient was contacted with the information and when, or what steps will be taken to contact the patient," L’Hommedieu Stankus says.
• There is no documentation of conversations and precautions given when a patient leaves against medical advice (AMA).
"This is a very high-risk time for the patient," says L’Hommedieu Stankus. "Document that the patient understood the risks and benefits of treatment versus leaving against your medical advice."
Be sure to document the reasons a patient gives for leaving and what advice you gave for the patient to return or get help elsewhere, she advises.
"If any abnormal labs or radiologic results return after the patient leaves, it is still your responsibility to try to contact that person to get them this information," says L’Hommedieu Stankus. "The gravity of the situation will dictate the appropriate action."
A patient complaining of chest pain may leave AMA just after a second troponin is drawn and refuses to wait for the results, for instance. While all other studies have been normal, the second troponin comes back elevated.
In this case, says L’Hommedieu Stankus, "you may need to go so far as to send out police to try to get the patient back to the ED if you cannot contact them directly yourself."
• The chart makes it appear that the patient wasn’t reassessed prior to discharge.
Genovese has seen many EPs testify that they rechecked the patient prior to discharge, but there was nothing in the chart to substantiate it, and the ED nurse could not recall it.
"Rest assured that in such an instance, the plaintiff attorney will argue that the patient was discharged without being seen again by the physician," he says. "This can be avoided with a quick note stating why the patient was cleared for discharge."
Lack of patient reexamination at the time of disposition leaves the EP vulnerable to plaintiff allegations that the patient was discharged or admitted in an unstable condition, says Pete Steckl, MD, FACEP, director of risk management at EmergiNet in Atlanta, GA.
This documentation is important in all patients with any protracted length of ED stay, particularly in patients with any disease process and pathology that has a tendency to evolve with time, says Steckl, such as abdominal pain, stroke symptoms, or ongoing chest pain. He says documentation of these items is legally protective for EPs:
- a re-examination indicating a benign abdominal exam at the time of discharge for patients who present with abdominal pain and evidence of a tender abdomen;
- recheck of abnormal vital signs at the time of discharge;
- a patient’s ability to tolerate fluids at the time of discharge, for pediatric patients who present with complaints of vomiting;
- the ability to ambulate, for any ambulatory elderly patient who presents with a recent history of fall and lower extremity injury, even with normal imaging studies.
- The chart doesn’t "tell the story" of the EP’s medical decisionmaking and the patient’s ED course.
"This section of the chart is a woefully underdocumented area," says Steckl. "Lack of completion can contribute substantially to difficulties defending suits."
Failure to address the decision-making allows the retrospective evaluating body, whether it be the courts or the medical board, says Steckl, "to fill in the informational gaps with frequently biased, subjectively derived reasoning that may not reflect at all what was going on real-time during the encounter."
For more information, contact:
- Gary Genovese, JD, Conrad & Scherer, Ft. Lauderdale, FL. Phone: (954) 462-5500. E-mail: email@example.com.
- Jennifer L’Hommedieu Stankus, MD, JD, Attending Physician, Group Health Physicians, Seattle, WA. Phone: (253) 820-9343. E-mail: firstname.lastname@example.org.
- Pete Steckl, MD, FACEP, Director of Risk Management, EmergiNet, Atlanta, GA. Phone: (770) 994-9426. E-mail: email@example.com.