Documentation Mistakes Lead to Significant Malpractice Awards
By Stacey Kusterbeck
Many emergency physicians (EPs) are aware documentation can make or break the outcome of a malpractice claim. “A lot of us start making long, wordy charts when we are nervous about patients or uncomfortable about certain interactions,” says Rachel A. Lindor, MD, JD, an emergency medicine consultant and associate chair of research at the Mayo Clinic’s Phoenix campus.
Still, it is unclear how much difference that extra time and effort makes in terms of protecting EPs from liability. “We wanted to explore that question so that we could put those efforts where it really mattered,” Lindor says.
Lindor and colleagues analyzed actual malpractice claims, searching for common themes in documentation mistakes.1 “We found that seemingly small errors could lead to significant malpractice awards,” reports Gregory Moore, MD, JD, co-author and a consultant for the emergency medicine residency program at the Mayo Clinic in Rochester, MN.
In one such case, a patient was seen in the ED with hypokalemia. The EP inadvertently gave the patient discharge instructions for hyperkalemia, which instructed the patient to discontinue potassium supplementation, resulting in the patient’s death. The case was settled for $100,000.
Lindor, Moore, and colleagues identified other documentation issues in ED malpractice claims:
• Inaccurate documentation. Sometimes, the problem is multiple providers’ documentation conflicts. One malpractice claim involved a patient who died of hemorrhagic shock. The EP’s documented physical exam was normal, but the triage nurse’s note stated the patient displayed signs of shock. The jury awarded the family $800,000.
In another case, a woman hospitalized for a known seizure disorder was given 150 mg of Keppra rather than her usual dose of 1,500 mg. After several days, the patient seized, suffered a respiratory arrest, and ended up with severe permanent neurologic deficits. The patient and family were awarded an $11.2 million verdict.
The lesson, says Lindor, is “don’t be a victim of technology. Transcription errors can feel like the computer’s fault, but ultimately can be deadly for patients, and are your responsibility.”
• Altered documentation. It became apparent in one case the EP had altered the medical record to conceal the fact an infant presented with a fever during previous ED visits. The patient was diagnosed with meningitis at the third ED visit and suffered permanent neurologic deficits. “The altered ED medical record was revealed, and the court levied a $20 million verdict against the EP,” Moore reports.
• Missing documentation on consultations with specialists. An EP consulted with a neurologist who recommended against additional diagnostic studies, and the patient subsequently died of an undiagnosed subarachnoid hemorrhage. “There was no documentation about the neurologists’ advice in the ED chart,” Moore notes. The family sued, the case went to trial, and a jury awarded $44 million in damages.
• No evidence indicating the EP discussed risks with patients leaving against medical advice (AMA). In one case, a child’s mother wanted to drive her child with abdominal pain to a pediatric center instead of transfer by ambulance. The mother delayed the transport for several hours, and the child died from sepsis due to a ruptured appendix.
The signed AMA form was documented in the ED chart. What was missing was any evidence the EP conveyed the risks of leaving AMA. The EP was found partially liable in that case. A patient who leaves AMA and signs an AMA form with no additional documented discussion is “an easy case for a lawyer,” Lindor says. “The AMA forms don’t really mean anything unless they are accompanied by documentation of the discussion the EP had with the patient.”
The medical record should document efforts to convince the patient to stay, assessment of the patient’s capacity to make that decision, and the fact the patient was encouraged to return to the ED at any point.
The claims analysis suggested some EP defendants over-relied on forms to protect them legally. The authors recommend against this. “Even though they look like fancy legal forms, they aren’t going to protect you in court,” Lindor warns.
Instead, EPs should prioritize documenting assessment of decision-making capacity and discussions with high-risk patients (e.g., patients making decisions that differ from the EP’s recommendations). “Overall, I don’t think that you have to document more. Instead, spend your time on those patients or those parts of the chart that are most important,” Lindor offers.
Based on the study’s findings, Moore would like to see EPs “ensure that their charts are honestly generated, and check to make sure that key care decisions are carefully documented with regard to consent and decision-making.”
Mark F. Olivier, MD, FACEP, FAAFP, risk management medical advisor at Lafayette, LA-based SCP Health, sees these documentation issues in malpractice litigation:
• Discrepancies between the EP’s documentation and nursing or EMS records. Ideally, the EP addresses all patient complaints nurses document. “A complaint not addressed by the ED clinician, which later progresses to a more serious condition, can be difficult to defend,” Olivier explains.
EPs should acknowledge any discrepancy in the historical or exam findings, then explain their own findings. For example, if the nurse documents a child is lethargic and the EP does not find this to be the case, the EP can document “On exam, the child was found not to be lethargic. Child is sitting up, smiling, with good eye contact.”
“If significant EMS complaints or exam findings are overlooked, and the findings are pertinent to the clinical presentation, this provides ammunition for the plaintiff attorney,” Olivier adds.
• Failure to document repeat vital signs before disposition in a patient with initially abnormal vitals. “If they remain persistently abnormal, maybe they deserve further investigation,” Olivier says. If a patient is discharged with abnormal vital signs, a reasonable explanation for the abnormality should be documented. For example, in a febrile patient discharged with slight tachycardia, EPs can document the elevated pulse is believed to be caused by fever.
• Failure to document life-threatening conditions were considered and why they were excluded. “It is easier to defend that you considered a diagnosis if it is in your medical decision-making,” Olivier says.
• Failure to document a complete exam relative to the patient’s complaint. For instance, if a patient presents with complaints of abdominal pain, a complete abdominal exam should be documented. The chart should note the exam was repeated during the ED visit.
“If the patient is discharged, your abdominal exam should be complete enough to indicate the patient had no emergent abdominal condition at the time,” Olivier says.
1. Ghaith S, Moore GP, Colbenson KM, Lindor RA. Charting practices to protect against malpractice: Case reviews and learning points. West J Emerg Med 2022;23:412-417.
Ensure charts are generated honestly, and check to make sure key care decisions are carefully documented regarding consent.
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