Not Giving tPA? EPs Must Protect Themselves Legally
There is actually surprisingly little the emergency physician (EP) can do to influence the outcome of most stroke cases, according to Marc E. Levsky, MD, a board member of the Walnut Creek, CA-based The Mutual Risk Retention Group, a fellow at Physician Insurers Association of America (PIAA), a Rockville, MD-based insurance trade association, and an EP at Seton Medical Center in Daly City, CA, "but a skilled plaintiff’s attorney or expert can convince the jury otherwise."
Levsky has seen many plaintiff experts allege that use of tissue plasminogen activator (tPA) could have prevented a patient’s major long-term disability. "Even though this claim is dubious scientifically, juries often buy it," he says.
One malpractice case involved a man in his 30s who presented to an ED with a seizure. "Seizure is a very unusual presentation of stroke in this age group," says Levsky. "But after an extensive workup, it was found he had a clot in the vascular artery." Even though the patient was ineligible to receive tPA because of the seizure, failure to administer tPA was one of the allegations in the malpractice claim against the EP.
The case settled, mainly because the plaintiff was sympathetic, says Levsky, "even though tPA was completely contraindicated, and it’s also highly questionable that it would have done anything to help the patient."
Levsky has seen many instances of adverse outcomes from EPs giving tPA to patients, both appropriately and inappropriately, in which patients developed serious bleeding and even died. "These cases could become claims too; however, they seem to do so less frequently," he says.
If an acute stroke patient has high blood pressure or has a very advanced age, says Levsky, "we know we could do something that can potentially harm the person, and probably won’t help them. But if we don’t do it, we’re much more likely to be sued."
The EP’s best defense, says Levsky, is to document a thorough discussion in which the patient declined tPA, with the patient’s words in quotes. "Documentation of a refusal is very important in these cases," he underscores. "Even in cases where the patient might be eligible, or probably isn’t eligible, I still try to document a thorough informed consent process, with refusal of tPA by the patient/family where applicable."
Jordan S. Powell, JD, an attorney at Levin & Perconti in Chicago, IL, recommends that EPs have a "full and frank" discussion with patients and their family about the risks and benefits of tPA.
"Injured patients and family look to file a lawsuit when they have not received answers to their questions, and no remorse or sympathy is shown by the treating physician(s)," he says.
Will Lawyer Pursue Claim?
"Missed stroke" cases involving ED patients with poor functional outcomes or high levels of disability are typically strong candidates for settlement, says Levsky. "A badly disabled young person would be very influential to a jury, regardless of causation," he explains.
Levsky says this is partly due to a perception that in medicine, "action is always better than inaction, even if the science is completely lacking. And if the outcome is bad, then the EP gets blamed by default."
When a plaintiff attorney is deciding whether to pursue a claim against the EP for a case involving missed stroke, Gary Mims, JD, a partner at Sickels, Frei and Mims in Fairfax, VA, says the most important factor is whether timely intervention would have likely altered the patient’s outcome.
For example, if a patient awakens with stroke symptoms that go unrecognized by the EP, that patient likely would not be a candidate for tPA, since the onset of symptoms cannot be determined and the window for intravenous tPA is 4.5 hours.
"Unless there was some other appropriate therapy that would have helped, even with a clear violation of the standard of care, the case would not be pursued by most plaintiff’s lawyers," says Mims.
It is very important to the EP’s defense to have an onset time of stroke symptoms documented in the medical record, underscores Powell.
If a patient begins to exhibit signs and symptoms of an ischemic stroke in the ED, he says, these cases "are certainly more winnable and ones that doctors should settle. In this situation, there is ample time for appropriate testing, consulting, and treatment if indicated."
Sources
For more information, contact:
- Marc E. Levsky, MD, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0100. Fax: (925) 262-1763. E-mail: [email protected].
- Jordan S. Powell, JD, Levin & Perconti, Chicago, IL. Phone: (312) 516-1128. Fax: (312) 332-3112. E-mail: [email protected]
