Head injury, stroke require speed to avoid malpractice

(Editor’s note: This is the last of a three-part series addressing the top five issues that lead to malpractice claims in the emergency department and how you can reduce the risk. In the last two issues, we addressed chest pain, headache, and abdominal pain. This month, ED Management looks at head injury and stroke.)

Head injury is one of the most time-sensitive of all conditions treated in the ED, making staff and physician response pivotal in avoiding malpractice claims, says Diane M. Sixsmith, MD, MPH, FACEP, chairman of emergency medicine at New York Hospital Medical Center of Queens in Flushing.

Brain damage was the second most frequently claimed injury (9%) in medical malpractice cases between 1994 and 2000, according to a report, Medical Malpractice: Verdicts, Settlements and Statistical Analysis from Jury Verdict Research in Horsham, PA. The most frequently claimed condition in those cases was death (23%), according to the report.

With head injury, reducing your risk of liability is all about making sure the patient gets treatment fast, she says. A computed tomography (CT) scan should be done within 30 minutes, and there must prompt neurosurgical response.

Sixsmith’s advice is based on 25 years as an expert witness and malpractice consultant, in addition to her years in the ED. She spoke on the topic at the recent meeting of the Chicago-based American Society for Healthcare Risk Management (ASHRM), along with Andrew S. Kaufman, JD, a partner with Kaufman Borgeest & Ryan LLP in New York City, a prominent law firm defending health care malpractice claims.

If the patient will be transferred, reduce your liability by requiring that the ambulance provider will guarantee a prompt response. That guarantee must be secured in advance, not when you have a patient to transfer, Sixsmith notes.

The inebriated patient poses a particular malpractice risk for EDs, she says. Encourage ED staff to assume a serious head injury in an inebriated patient until you can determine otherwise. Those patients can be difficult to evaluate for head injury and are more likely to have one, Sixsmith points out.

Frequent, careful observation by nurses is another important protection for EDs. If the patient sues, you want to be able to show that a nurse performed a neurological check frequently.

That often is not the case, especially at shift change. "I can’t tell you how many times I’ve seen records with the nurse documenting that the patient’s neurological status was all normal and then the next nurse documents two hours later that the patient was unresponsive," she says.

Speed also is of the essence in treating stroke patients, according to Sixsmith. Tissue plasminogen activator (TPA) should be administered within three hours of symptom onset, but she also cautions that TPA must be administered only when the patient has a neurological deficit that is not improving and is severe enough to warrant the risks of TPA.

Any delays in treatment can lead to irreversible damage, so the ED must have a system for fast-tracking stroke patients, she points out.

"The [ED] should be structured so that patients with stroke symptoms can be rapidly triaged and get a CT of the head within 45 minutes of arrival," Sixsmith advises. She warns that consults should not be done over the phone.

Kaufman agrees. The hospital is at extreme risk if the consulting physician gives an order that proves to be unwise. "Tell the doctor that he either comes in to examine the patient, or you have to make the decision yourself," he says. "The liability lies with the hospital, not the physician on the phone."

Rapid administration of TPA is a growing concern. Sixsmith says her experience suggests there has been "a remarkable increase" in suits for failure to treat stroke with thrombolytic therapy since the Food and Drug Administration approved TPA for that usage in 1995.

Many neurologists and ED physicians do not agree with the American Heart Association and the American Stroke Association, which call for administering TPA within three hours of symptom onset to patients whose neurological deficit is severe enough for the benefit to outweigh the risk, she notes. But that action is what she advocates.

"TPA should be given to patients who have more than just a mild deficit," she says.

No TPA leads to lawsuit

Sixsmith says hospitals should have a policy that allows ED physicians to administer a treatment or perform a procedure (assuming that they have been appropriately credentialed to do so) once it has become the standard of care. She considers the rapid use of TPA to be the standard of care, though some clinical experts would disagree.

Alternatively, Sixsmith notes, the hospital can insist that the appropriate subspecialist come to the hospital to do it within 30 minutes of consultation.

"Enable your ED physicians to do what’s best for the patient, whether that is administering TPA or admitting the patient to the hospital, and overrule the doctor on the phone," she says.


For more information on ED malpractice risks, contact:

  • Diane M. Sixsmith, MD, MPH, FACEP, Chairman of Emergency Medicine, New York Hospital Medical Center of Queens, 56-45 Main St., Flushing, NY 11355-5045. Phone: (718) 670-1231.
  • Andrew S. Kaufman, JD, Partner, Kaufman Borgeest & Ryan, 99 Park Ave., 19th Floor, New York, NY 10016. Phone: (212) 980-9600.