Few Malpractice Claims Involve Ultrasound
By Stacey Kusterbeck
More EDs are using ultrasound, causing some emergency providers to worry about malpractice risks. “Point-of-care ultrasound has been proven to improve patient care and outcomes in many ways. But it is frequent that novice users express fear of litigation as a barrier,” says Linda Solomon, DO, clinical assistant professor in the department of pediatrics at Stony Brook University School of Medicine.
Solomon and colleagues analyzed the risk for pediatric emergency medicine by reviewing case law from 2011 through 2021. They found no malpractice cases directly related to point-of-care ultrasound.1 “Our goal in this study was to leverage the collaborative relationship of our pediatric emergency medicine clinicians and our risk management team to provide reassurance against this fear,” says Maggie P. Emma, Esq., MBA, one of the study authors and vice president of risk management at Northwell Health.
Ten malpractice cases involving ultrasound were identified. Seven cases concerned pediatric patients, most regarding testicular torsion or appendicitis. Of 10 cases, two failed to consider the correct diagnosis. If it had been considered, ultrasound would have been an appropriate study. Of the other eight, six involved failure or delay in ordering an ultrasound. One case alleged the ED provider initially performed an improper ultrasound study. Another case alleged the provider made an incorrect diagnosis based on the ultrasound. “Our study showed that point-of-care ultrasound did not increase the risk of malpractice litigation, despite its increased use over the last 10 years,” Solomon says.
For emergency providers, this offers reassurance that when used appropriately, ultrasound can improve patient care without increasing the risk of malpractice litigation. “In fact, as most litigation surrounding ultrasound in general has been due to omitting or delaying imaging, point-of-care ultrasound may help mitigate that risk,” Solomon offers.
Using ultrasound in the ED is legally protective in several ways, according to Michael Blaivas, MD, FACEP, FAIUM, professor of medicine at the University of South Carolina. Ultrasound lowers the risk of missing certain critical reversible or treatable conditions, which can rapidly progress to a point of no return, Blaivas says. These include abdominal aortic aneurysm, pericardial effusion, and pneumothorax. “This was one of the original arguments we used with hospitals to drive adoption and purchase, years ago,” Blaivas says.
Additionally, ED providers who are placing central lines without ultrasound are acting below the legal standard of care. “If complications arise, providers will be attacked on this by plaintiff’s lawyers,” Blaivas says. The same is true for any other procedure for which ultrasound guidance is now considered the standard of care, such as peritonsillar abscess drainage.
Blaivas also has seen plaintiffs make an issue of the fact EPs failed to use ultrasound when managing a resuscitation or cardiac arrest. As for why there are so few lawsuits involving ED ultrasound use, Blaivas says there are some reasons for this. “Theoretically, we should be getting sued for using ultrasound at the same relative rate our radiology colleagues and other traditional imagers are, but we are not,” Blaivas offers.
Blaivas says in his experience, the risk is “about equal, or a bit higher” if EDs fail to use ultrasound, compared to EDs using ultrasound. “I have seen a high percentage of cases recently where plaintiffs introduced, or tried to introduce, ultrasound as something that would have helped the patient have a better outcome,” Blaivas reports.
Documentation often is the deciding factor as to whether plaintiffs prevail in those cases. “There has been a tendency for EPs to avoid documenting ultrasound examinations in the ED medical record. Some providers feel this is protective, somehow,” Blaivas says.
What those EPs are forgetting is that they are not the only ones with knowledge of what transpired. Patients and families will remember the ultrasound exams. Also, nursing notes may document the ultrasound exam occurred. “Not documenting and possibly denying or failing to recall you performed an exam allows the plaintiffs to paint the EP as hiding something or lacking competency,” Blaivas says.
The same is true if EPs fail to save images or video of the ultrasound for fear someone will later find mistakes. “That can turn against you when lawyers argue this is below the standard of care and a jury starts to feel something was hidden or missed,” Blaivas says. It is important to issue a report of the exam, even if no billing occurs. The report should give the indication, the exam performed, findings, and include representative images captured. “Many EDs have electronic forms already in place to document ultrasound examinations, but a typed or narrated one will suffice,” Blaivas says.
EPs also must document and describe the discussion with the patient or family regarding the exam performed, the goal and limitations of the exam, and what was found. “The findings have to be put into context and their limitation discussed as well,” Blaivas adds.
1. Solomon L, Emma M, Gibbons LM, Kusulas MP. Current risk landscape of point-of-care ultrasound in pediatric emergency medicine in medical malpractice litigation. Am J Emerg Med 2022;58:16-21.
Point-of-care ultrasound has been proven to improve patient care and outcomes in many ways. But novice users express fear of litigation as a barrier.
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