“Bowel obstruction, meningitis, encephalitis, TIA, stroke, subarachnoid hemorrhage, malaria, sepsis, bacteremia, pneumonia, influenza, appendicitis, cholecystitis, and pyelonephritis, amongst others.”
In the chart, an emergency physician (EP) then went on to explain why he ultimately believed the patient had stomach flu.
“It was one of the most helpful chart notes I’ve ever seen in the context of an emergency department lawsuit,” Jennifer K. Oetter, JD, an attorney at Portland, OR-based Williams Kastner, says. The case was voluntarily dismissed.
The documentation so thoroughly countered the claim’s allegations that the plaintiff’s attorney suspected the EP had altered the chart. There were multiple requests for production of all versions of the chart, including metadata for the dictation to try and find an electronic footprint that showed the dictation was altered.
“We were able to locate the audio of the original dictation to prove, definitively, that the chart note had not been altered,” Oetter recalls.
Difficult Cases to Defend
The two abnormal vital signs Oetter sees come up most often in ED litigation are elevated temperature and elevated heart rate. “These ‘abnormal’ findings can be completely innocuous, or they can be non-specific signs of anything from stomach flu to meningococcemia,” she notes.
What makes them difficult to defend is that they are “easily relatable to a jury,” Oetter says. “A juror understands that a high temperature and high heart rate are not good things.” When the patient’s chart indicates any abnormal vital signs, she explains, “it is easy to get them to follow a logical path of ‘that should have been enough to cause the emergency room provider to do more.’”
A recent malpractice case involved a 50-year-old woman who presented to an ED reporting a terrible headache. “The emergency room physician saw the patient after she waited more than two hours; she had vomited in the waiting room,” Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago, says. During an examination, the doctor noted that she had been in the hospital just days before, and diagnosed with a benign brain tumor.
The treating neurologist told the ED physician the woman had an appointment to see a neurosurgeon in several days.
“She had an elevated heart rate, respiratory rate, and blood pressure. The ED physician discharged her with a heavy dose of [meperidine] and a prescription for pain relief medication,” Kreisman says. The woman died at home that night of brain herniation related to the diagnosis of the benign brain tumor; the case against the EP was settled. “Had the emergency department staff and physician addressed her abnormal vital signs and symptoms, she would have likely survived,” Kreisman says.
Unaware of Final Set of Vitals
Oetter has seen plaintiff attorneys exploit the fact that EP defendants are often unaware of the final set of vitals. At deposition, attorneys almost always ask the EP, “If you had known about that last set of vital signs, would you have done anything differently?” Oetter explains, “The most honest answer is almost always ‘I don’t know.’”
It can strengthen the EP’s defense if ED nurses documented that the EP was aware of the abnormal vital signs and that it does not change the EP’s evaluation. “For the physician, the most powerful gift they can give to their lawyer is a thorough chart note that includes, in the section for ‘plan,’ acknowledgement of the abnormal vitals,” Oetter says. Ideally, the EP also includes a list of things that those vitals caused them to consider.
Most malpractice suits against EPs involve one or more abnormal vital signs, according to John Davenport, MD, JD, physician risk manager of a California-based HMO. “There are innate legal risks of ignoring or at least not explaining why a ‘vital sign’ is not normal,” he warns.
In one such case, a 63-year-old woman fell from a ladder while trimming bushes in her back yard. She presented to an ED complaining of left chest wall pain and dizziness.
“Her blood pressure was noted as ‘normal’ at 105/75,” Davenport says. An X-ray revealed a rib fracture, and doctors discharged her on pain medications. A few hours later, she collapsed at home and arrived at another ED with a ruptured spleen. “At trial, one of the allegations was that the fact that she was a poorly controlled hypertensive patient on multiple medications who had not had a normal blood pressure in years,” Davenport says.
The plaintiff argued that this should have put the EP on notice that the “normal” blood pressure was abnormally low for this patient. “The verdict was for the plaintiff for a substantial amount,” Davenport says.
To an EP, the term “vital sign” describes a collection of data that is sometimes useful in diagnosis and treatment, Davenport says, but to a layperson, the term has broader, possibly misleading implications. “The term is mundane to us. But to a jury, the term ‘vital signs’ likely takes on a larger import, influencing the jury more so when one is abnormal,” Davenport says.
He offers these risk-reducing practices:
• Document a follow-up plan for abnormal vital signs.
“If a patient is discharged with high blood pressure, for instance, document that the patient has been told and agreed to follow up with his or her physician in an appropriate time frame,” Davenport says.
• Evaluate the vital signs in context.
The EP might chart, for example, “The patient’s pulse is 98, but that is consistent with pain.” Conversely, Davenport says, “blood pressure of 110/70 may seem wonderful in an ED patient, but not when the patient is a poorly controlled hypertensive with a series of outpatient blood pressure readings in the 150/100 range.”
• Be sure that automatically inserted notes in electronic medical records (EMRs) don’t conflict with the documented data in the chart.
“Blocks of text may be inserted to save the physician time,” Davenport says. “It is therefore important to review blocks of text for accuracy before the physician completes the chart.”
For instance, a note which automatically enters, “Vital signs reviewed and normal,” may conflict with an ED patient’s actual vital signs noted elsewhere in the chart. “Even if the discrepancy is without clinical significance, the fact may be offered at trial to infer that you are, at best, sloppy — and at worst, not truthful,” Davenport says.
• When vital signs are abnormal, recheck them and document it.
“This confirms the appearance of someone who is diligent and careful in his or her care of the patient,” Davenport says.
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John Davenport, MD, JD, Irvine, CA. Phone: (714) 615-4541. E-mail: [email protected].
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Robert D. Kreisman, JD, Kreisman Law Offices, Chicago, IL. Phone: (312) 346-0045. Fax: (312) 346-2380. E-mail: [email protected].
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Jennifer K. Oetter, JD, Williams Kastner, Portland, OR. Phone: (503) 944-6903. Fax: (503) 222-7261. E-mail: [email protected].
