Excellent documentation of a telephone consultation with a specialist was a key factor in an EP defendant’s dismissal from a recent malpractice case. The specialist remained a defendant in the case.
“The EP was dismissed, presumably due to the fact that the plaintiff’s expert felt it was appropriate for the EP to rely on the advice of the specialist,” says Ellen M. Voss, JD, a medical malpractice defense attorney at Portland, OR-based Lewis Brisbois Bisgaard & Smith LLP.
Several days after an outpatient procedure performed by a specialist, the patient presented to the ED with complaints of fever and pain at the surgical site. The EP performed an appropriate work-up, and consulted with the specialist who performed the procedure.
“The EP’s documentation of the substance of the call with the specialist made it clear he was relying on the specialist’s opinion that additional work-up was not needed,” Voss says.
Once the specialist confirmed the discussion had happened as documented, the EP was dismissed from the case.
Here are some other pieces of documentation that often become critical in malpractice litigation against EPs:
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The time of important events — review of vital signs, reassessments, physical exams, discussions with patient and/or family members, discussions with specialists, and the last discussion before the patient is discharged.
“Although there is a time stamp associated with everything in the EMR [electronic medical records], if an interaction or actual care occurred well before the physician is able to document the encounter, it can be very helpful to document the actual time of the event in the summary note,” Voss advises.
If an EP does not document in the EMR contemporaneously, she explains, but instead prepares a summary note at the end of or after the patient’s care, it can be difficult to determine when each event described in the note occurred.
“EPs then have to rely on the charting of other events captured in nursing notes, orders sign-off, lab records, or imaging records to reconstruct a timeline,” Voss explains.
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Acknowledgement of abnormal vitals.
Voss has seen many malpractice claims in which the last set of vitals taken before an ED patient’s discharge was abnormal. Often, none of the parties involved documented whether the EP was notified.
“EPs can protect themselves by always documenting if they were notified of abnormal vital signs taken before discharge,” Voss proposes.
By consistently documenting every notification of abnormal vital signs, the EP will be able to testify that, based on his or her practice, there was no notification of abnormal vital signs if there is no documentation stating otherwise.
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What was on the EP’s differential, and why certain diagnoses were excluded.
“Generally speaking, the more a note reflects the medical judgment of the physician, the more difficult it is for plaintiffs to present evidence of alternate theories that the physician should have been pursuing,” Voss says.
If an EP notes why a certain diagnosis was excluded at the time of the ED visit, it can make a malpractice suit easier to defend if the patient in fact ends up having that particular diagnosis.
“Listing everything that was considered and why each particular diagnosis was ruled in or out, is considered unlikely, or is still on the differential, is an excellent self-preservation technique,” Voss says.
Including a short paragraph explaining the EP’s decision-making can be legally protective for EPs, advises Charles A. Eckerline, Jr. MD, FACEP, an EP at University of Kentucky Hospital in Lexington, KY, and associate professor in the Department of Emergency Medicine at the University of Kentucky.
“With every complaint, there are certain worrisome high-risk diagnoses that are relevant,” he explains. “State why you decided to order, or not order, a particular test. You want to have some documentation that makes your thought process clear.”
In one malpractice case, a patient was discharged home from an ED, but returned with full-blown cauda equina syndrome.
“The patient ended up with a reasonably good result from surgery, but some neurological deficits,” Eckerline recalls. “The documentation on the first ED visit was good enough so that the lawsuit was eventually dropped.”
The EP specifically noted the absence of bowel or bladder symptoms, normal rectal tone and sensation, and intact ankle reflexes at the time of initial evaluation.
“The plaintiff’s own experts admitted under oath that if the findings were as documented, then there was no indication for a neurosurgery consult, admission, or emergency MRI,” Eckerline says.
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That risks were explained to patients who refused a procedure, refused admission, or left against medical advice.
A recent malpractice case involved a patient who presented with chest pain; the ED workup was negative. However, the EP still thought the patient was high-risk, and recommended the patient be admitted, but the patient refused admission.
“The patient ended up having a bad result, and sued the EP,” Eckerline says.
The EP’s notes specifically stated the risks had been explained to the patient, including stroke, heart attack, or out-of-hospital death, and that the patient’s wife and ED nurse were present during the discussion.
“The final disposition is pending, but the documentation puts the ED physician in a much better position,” Eckerline notes.
Another factor strengthening the EP’s defense was that the documentation was done contemporaneously with the ED visit.
“Documentation delays longer than an hour or two can be problematic in a subsequent lawsuit,” Voss notes.
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Charles A. Eckerline, Jr., MD, FACEP, Department of Emergency Medicine, University of Kentucky, Lexington. E-mail: [email protected].
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Ellen M. Voss, JD, Lewis Brisbois Bisgaard & Smith, Portland, OR. Phone: (971) 712-2800. Fax: (971) 712-2801. E-mail: [email protected].
