Lack of specific personalized discharge instructions and no indication of the EP’s rationale complicated the defense of a recent malpractice claim involving a 38-year-old woman who presented to an ED with abdominal pain, nausea, and a fever that resolved in the ED. The patient ultimately developed sepsis.
“The claim was reviewed and ultimately denied because the standard of care was met. But better documentation would have likely prevented the claim from being brought in the first place,” says Scott O’Halloran, JD, a medical malpractice attorney in the Tacoma, WA, office of Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane.
Standard electronic medical record (EMR) discharge instructions regarding abdominal pain were given. “There was no medical decision-making summary given by the physician,” O’Halloran says. The patient failed to follow up with her primary care physician as indicated in the discharge instructions and was later treated emergently for sepsis. In the resulting claim, the patient’s lawyer alleged that the EP did not properly evaluate and treat the patient, resulting in delay in diagnosis and treatment for sepsis.
“This case exemplifies the inadequacy of the EMR to provide a clear record of the medical decision-making and specifics of personal patient instructions,” O’Halloran says. It also underscores the necessity that the EP clearly document the rationale for the diagnosis and the content of the discussion.
“An optimal way of managing this patient’s case might include a note that discusses the medical decision-making at the time of the visit, including the diagnosis considered, and a documented discussion with the patient about the findings, assessment, and plan,” O’Halloran says.
Relying on printed patient instructions as a method of communication with an ED patient can be problematic. Studies have shown that patients don’t always read them.1 “When they do, the language may be too medically sophisticated for the patient to comprehend or too broad for the patient to apply to their situation,” O’Halloran says.
Patient Doesn’t Fit the Mold
Malpractice claims alleging premature discharge from an ED generally involve a failure to take an adequate history or failure to perform adequate examination and imaging, according to Armand Leone, Jr., MD, JD, MBA, a medical malpractice attorney at Britcher, Leone & Roth in Glen Rock, NJ.
“Typically, there is a disconnect between the patient’s profile and the stereotypical patient for the underlying condition,” Leone says. “The common fact pattern is that the patient doesn’t fit the prototypical patient for the disease or condition.”
This causes the EP to commit a representative bias error and subconsciously to exclude a more serious condition since the patient “doesn’t fit the mold,” Leone says. “These errors occur especially when the ED physicians are busy, tired, or distracted.”
A recent malpractice claim involved an athletic, non-smoking young man under 35 who reported chest pain after playing sports. A chest X-ray was normal, but an EKG was not obtained.
“The physician mentally ruled out cardiac ischemia based on an erroneous assumption that the patient is too young and too healthy to have coronary disease,” Leone says. “This mental bias caused the physician to misdiagnose cardiac ischemia and to prematurely discharge a patient with an unstable and potentially lethal condition.” In this case, misdiagnosing the condition as reflux esophagitis led to a non-fatal heart attack with cardiac arrest that also caused significant hypoxia and permanent brain damage. “The failure to order an EKG was pivotal in this case, which resulted in a settlement for the plaintiff,” Leone says.
Other malpractice claims involve the EP’s failure to recognize early signs of a stroke that present with minimal symptoms. “Depending on the age, sex, and associated co-illnesses of the patient, an EP may fail do a complete neurological workup or request a neurology consultation because the patient does not create an index of suspicion that stroke may be the cause,” Leone says.
A recent case involved a 45-year-old woman who presented to an ED within 90 minutes of developing facial droop. “Since the patient did not have any cardiovascular risk factors and had Lyme disease, the facial droop was attributed to that, without any further consideration of other etiologies, neurological workup, or consultation,” Leone explains. Later that night, after being discharged from the ED, the patient went on to have a completed stroke. This case ultimately settled after discovery was completed.
Leone says EPs can protect themselves legally by recognizing that they are vulnerable to various cognitive biases that can lead to wrong diagnoses. “Just because a patient is not at high risk for a condition based on demographics does not mean the patient is not at any risk,” he underscores. “If it is flu season and five patients have come in with respiratory symptoms, malaise, and fever consistent with the flu, it doesn’t mean that the sixth patient doesn’t have a bacterial pneumonia.”
Leone suggests EPs take a moment to think critically about what else could be causing the patient’s problems and ask, “What is the worst that could be going on?”
“These mental time-outs allow a physician to step back and look at the whole patient and not just the salient features that created her first impression of the problem,” Leone says. “If a physician fails to consider a diagnosis or fails to provide a relevant treatment, that creates an omission rising to a deviation.”
Abnormal vital signs in ED patients at the point of discharge is a major focus at TeamHealth Patient Safety Organization, says associate director Nathaniel Schlicher, MD, JD, FACEP. Schlicher is also attorney of counsel in the Seattle office of Johnson, Graffe, Keay, Moniz & Wick.
“We need to be thoughtful in the way that we approach abnormal findings. It is a last opportunity for us to double check the chart for a safe course,” Schlicher says. Abnormal vital signs have been linked to unexpected deaths after discharge from the ED.2
The ED chart ideally shows the provider has reviewed the vital signs and considered them in the context of the differential and the treatment plan. For instance, discharging a febrile child with an upper respiratory infection who is tachycardic may be a reasonable approach. “If the same child is younger, unimmunized, and has labored breathing, it may present a very different picture,” Schlicher says.
The ED chart should include the EP’s reason why the patient had abnormal vital signs. “If a patient has an unexpected return, the presence of abnormal vital signs often implies that something was missed on the first visit,” he says.
An anxious teenager who is discharged with tachycardia and a panic attack, for instance, might return three days later with a pulmonary embolism. “It’s important to document why you did not find the abnormal vital signs to be a concern, just as you would document why an abnormal lab is not a concern,” Schlicher says. Good documentation will identify the abnormality, discuss its implication on the diagnosis, explain away other potential diagnoses in the differential, and indicate how the plan has been affected.
TeamHealth encourages its EDs to have a protocol for checking vital signs within 30 minutes of discharge, holding the discharge if any vital signs are abnormal, and then notifying the EP. This provides EPs the opportunity to document their rationale if they proceed with the discharge.
“Discharging an asthmatic that is mildly tachycardic but breathing well, moving good air, and without evidence of respiratory distress may very well be OK. But sometimes the double check may change your course,” Schlicher advises. In some cases, EPs decide against discharging the patient.
“The tachypneic and tachycardic patient that is using accessory muscles that you had not seen on your initial evaluation may have a more severe presentation and require observation and hospitalization if they do not improve,” Schlicher notes.
Just as with abnormal labs, the EP needs to consider why abnormal vitals did, or did not, change the treatment plan. “You don’t ignore the data that’s in front of you,” Schlicher says. “You don’t necessarily need to act on that data. But it’s important that prospectively, we have a reason for why we did something.”
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Samuels-Kalow ME, et al. Effective discharge communication in the emergency department. Ann Emerg Med 2012;60:152-159.
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Sklar DP, et al. Unanticipated death after discharge home from the emergency department. Ann Emerg Med 2007;49:735-745.
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Armand Leone, Jr., MD, JD, MBA, Britcher, Leone & Roth, Glen Rock, NJ. Phone: (201) 444-6444. Fax: (201) 444-0803. E-mail: [email protected].
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Nathaniel Schlicher, MD, JD, FACEP, Associate Director, TeamHealth Patient Safety Organization. E-mail: [email protected].
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Scott O’Halloran, JD, Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, Tacoma, WA. Phone: (253) 328-7812. E-mail: [email protected].
