Do You Find Yourself Defending a Lawsuit Alleging Missed MI?
Documentation can "make or break" the outcome
(Editor's note: This is the second of a two-part series on missed myocardial infarction (MI) cases. This month, we cover specific documentation practices which can impact the outcome of a patient's lawsuit alleging a missed myocardial infarction. Last month's ED Legal Letter examined ways to reduce liability risks stemming from triage.)
A patient with crushing chest pain and shortness of breath somehow ends up waiting a prolonged time in your ED waiting room, has a myocardial infarction (MI) and dies; or
A patient is appropriately discharged from your ED with a non-cardiac diagnosis, and has an MI hours later.
These are two very different scenarios, but both are likely to lead to a malpractice lawsuit. "Sudden death due to myocardial infarction and/or atherosclerotic coronary artery disease occurs in more than 250,000 patients each year," says Corey M. Slovis, MD, professor and chairman of the Department of Emergency Medicine at Vanderbilt University Medical Center in Nashville.
Patients at increased risk include those with known coronary disease, hypertension, hyperlipidemia, diabetes, smokers, those with a family history of coronary disease at an early age, obese and/or inactive individuals, cocaine users, and also those with underlying diseases such as systemic lupus erythematosus, rheumatoid arthritis, chronic inflammatory diseases, and HIV-positive patients on certain antiretroviral agents.
"Some of these patients may be appropriately evaluated in the ED, only to succumb to sudden death hours or days later," says Slovis. Some patients who ultimately go on to suffer sudden death will have been seen in the ED for complaints totally unrelated to their ultimate cause of death, while others may be seen for chest pain, shortness of breath, weakness, dizziness, near syncope, nausea, vomiting, or vague abdominal pains.
"All of these are potentially due to coronary disease, and all, as the plaintiff's attorney will allege, are the reason the patient should never have been allowed to leave the ED," says Slovis.
If the patient presents prior to the evolving acute MI, it's conceivable that he or she could be seen for an unrelated illness and then shortly thereafter develop an acute MI, says A. Clinton MacKinney, MD, MS, a board-certified family physician delivering emergency medicine services in rural Minnesota. In this case, a patient may erroneously believe the acute MI is linked to the previous illness.
"However, our greatest fear is 'atypical' angina without AMI masquerading as heartburn, muscle strain, or even anxiety," says MacKinney. "In these cases, I believe the science is clear that clinical judgment is superior to any testing in the effort to rule in or rule out an early MI. Unfortunately, that's tough to defend in a test-oriented society."
Reduce Risks with Good Documentation
Regardless of the specific allegations in a missed MI lawsuit, "Documentation is always front and center in these cases," says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods. McMenamin is also a former practicing emergency physician.
"Write a very good history including all the pertinent negatives and positives," says McMenamin. "If it is the case that the pain is atypical and it's not related to exertion and not relieved by rest and not accompanied by the classic associated symptoms, take the time to let the record show that. Those extra few seconds that you take are really very valuable."
According to Louis Graff, MD, professor of emergency medicine at the University of Connecticut School of Medicine in Farmington and associate chief of emergency medicine at the Hospital of Central Connecticut in New Britain, if the diagnosis of MI is missed, "what saves the physician is if their documentation is complete, and their dispositionhome versus observation versus admitis consistent with what their documented cardiac risk stratification shows is correct."
Graff adds that since there are various cardiac risk stratification models, the healthcare organization should have a policy with an agreed upon, evidence-based cardiac risk stratification standard. "Compliance with this would offer the physician protection," says Graff. "If there is a bad outcome, the best mitigating factor is the physician following the institution's standards."
MacKinney says that documentation of symptoms and appropriately linking those symptoms to a non-cardiac diagnosis is critical. "In these cases, I also try to discuss with the patient and the family our ongoing inability to make the correct diagnosis 100% of the time - and maybe that is why heart disease continues to be the number one killer of Americans!" he says. "I also carefully discuss the importance of prompt follow-up if there is any worsening or new symptoms."
ED patients that are not clearly non-cardiac are often admitted for observation, repeat lab and EKG testing, and stress testing, if available. "But it is important to note that even this conservative approach is not foolproof," says MacKinney.
MacKinney says compliance with generally accepted clinical protocols for rule out MI or chest pain should offer protection-"protection for the patient's health and protection for the physician from liability. I would also like to think that a physician's willingness to acknowledge with the patient the challenge of angina diagnosis, the physician's willingness to answer every and all patient and family questions, and the physician's clear and specific discussion of follow-up plans would be important."
According to McMenamin, "You should have, even in this era of stingy reimbursement, a pretty low threshold for getting an EKG on almost anybody who could have a reasonable basis to at least raise the question, 'Could this be cardiac?'"
There is also a risk of the ED physician being so focused on MI that other sources of thoracic distress that can be equally dangerous, aren't considered. "They don't get as much publicity because they are not quite so common, but a dissecting aortic aneurysm or a pulmonary embolus for example, are just as potentially lethal as a heart attack," says McMenamin. "So those have to be part of the differential, as well."
Consult with Others
Whereas some chest pain patients are straightforward and can simply be diagnosed and treated, other cases leave room for doubt even for the most experienced ED physician. "Even though you're pretty confident that it's noncardiac, if you have someone with a cardiac history who perhaps is under the care of a cardiologist, then you might err on the side of caution and check in with the physician," says McMenamin. "You improve your position considerably if you have taken the time and trouble to confer, even if only over the phone, with the internist or cardiologist on call and documented his advice on the decision that you reach."
It's also a good idea to contact the patient's primary care physician if there is one, and document his or her opinion on the case. "It isn't that you are expected to be perfect. You are just expected to be reasonable," says McMenamin. "And by conferring with another physician, you are able to say that, 'I'm a reasonable physician and here's what I think. But because I'm especially cautious, I consulted another reasonable physician, Dr. Jones, who unlike me has seen this case a dozen times before.' Of course, this is time-consuming and time is at a premium in the ER. But when you can show something like that, you're in much better shape."
As for the possibility that the plaintiff's attorney might use this consultation to raise questions about the clinical competence of the ED physician, McMenamin says it's highly unlikely and, in fact, would likely backfire.
"I have never seen that, but if anyone wants to try it and I'm on the defense side, I say bring it on. The formula for standard of care varies state to state, but the basic formula is, you do what a reasonably prudent ER doc would do under similar circumstances."
A consultation in this scenario simply reflects the fact that "it's prudent to take advantage of better information," says McMenamin. "If I'm looking at a patient's EKG and the ST waves look a little funny to me, but I have the solace of knowing that two months ago an EKG was done and looked the same way, that's very helpful to me, and to him," says McMenamin.
In any event, McMenamin notes that the ED physician doesn't lose a case because somebody thinks he's not competent, but because he breached the standard of care and caused harm. "I don't think I'd have even the slightest difficulty finding a highly qualified expert witness to say it couldn't possibly breach the standard of care to take five minutes on the phone gaining information that another physician may be uniquely qualified to provide."
McMenamin adds that making a follow-up call to the patient or their family is a good practice in general, whenever there is some doubt about a diagnosis at the time of discharge. "When it's practicable, and it isn't always, call or have a nurse call a few hours later or the following morning to make sure things are okay," says McMenamin. "And if they are not, then advise the patient to return."
Keys to Successful Defense
Slovis says that for a successful defense of a "missed MI" case, you should have a well-documented ED chart, a correctly read EKG, appropriate lab testing, an objective test correctly performed and interpreted, and appropriate follow-up instructions.
"If a patient is not believed to be suffering from unstable angina, then a good history must lead away from a diagnosis of coronary disease," says Slovis. This should include such factors as stating the following as negative: No substernal chest pain made worse by exertion, better by rest, no associated shortness of breath, weakness, or near syncope.
"Comments on ultra-short duration or long history of similar complaints, sharp, or 'pins and needles like" pain, all assist in suggesting a noncardiac etiology," says Slovis. "The physical exam must include a cardiopulmonary exam."
Slovis says that "there are three areas that, to me, make or break a case. The first is getting an EKG and correctly reading it. I urge that all of us finish our reading and then go back through the EKG carefully looking for, and excluding, the five STEMI types by anatomic location."
Secondly, draw cardiac enzymes and correctly interpret them. "If the chest pain is recent, two sets are required," says Slovis. "And the single most important part of the workup, and one that allows a physician to truthfully say he or she did not miss an MI or unstable angina, is an objective test." Slovis says he believes a negative exercise treadmill test, stress echocardiogram, nuclear stress test or a CT coronary angiogram "allows appropriate discharge of patients at some risk for sudden death sometime in the hopefully distant future."
Slovis says that the two worst mistakes an ED physician can make are to either not get an EKG, or to misread one and miss acute ischemia or infarction.
Other common mistakes include not comparing a just-obtained EKG to an older one, not repeating an EKG if the patient has chest pain during the stay, or ignoring a positive cardiac marker value.
"A well-done history and physical, and discussing the case with involvement of the patient's physician, usually provides some mitigating circumstances when the patient is discharged inappropriately," says Slovis. "Carefully arranging outpatient follow-up with a cardiologist who has agreed with the plan is also very helpful."
If the patient's discharge from the ED was truly appropriate, then the documentation must reflect that, says Jonathan M. Glauser, MD, chair of the Cleveland (OH) Clinic's Emergency Services Institute. "The chart should describe a history and physical which simply is not consistent with acute coronary syndrome or MI," he says. "Of course, I am assuming that any EKG readings are accurate and that there is nothing missed there."
The history should reflect that serious cardiac concerns were considered and discounted based upon the history, risk factors, prior work-up and presentation. "The nursing record should also demonstrate all of the above. Any inconsistencies must be addressed and documented thoroughly in real time prior to discharge," says Glauser. "Don't even think of changing the record later, although a dated addendum might not hurt."
As for laboratory testing, Glauser says that in general, it doesn't help one's case in court to have one negative set of cardiac markers. "Granted, this shows that the possibility of myocardial infarction was considered. On the other hand, these entities cannot be ruled out based upon one negative finding," says Glauser.
The counter claim could be, for example, that the patient was having atypical symptoms for two weeks, and that there would have been plenty of time for a troponin to become positive. "It is better that an independent reader of the medical record would conclude that the patient couldn't possibly have had an MI or acute coronary syndrome, based upon the history and examination," says Glauser.
Sources
For more information, contact:
Jonathan M. Glauser, MD, Emergency Services Institute, Cleveland Clinic, Cleveland, OH. Phone: (216) 445-4550. E-mail: [email protected]
Louis Graff, MD, Professor Emergency Medicine University of Connecticut School of Medicine/Associate Chief of Emergency Medicine at the Hospital of Central Connecticut, New Britain, CT. Phone: (860) 224-5675. Fax: (860) 224-5774. E-mail: [email protected]
A. Clinton MacKinney, MD, MS, Senior Consultant, Stroudwater Associates, St. Joseph, MN. Phone: (800) 947-5712. E-mail: [email protected]
Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1015. Fax: (804) 698-2116. E-mail: [email protected]
Corey M. Slovis, MD, Professor and Chairman, Department of Emergency Medicine, Vanderbilt University Medical Center, Nashville, TN. Phone: (615) 936-1315. E-mail: [email protected].
This is the second of a two-part series on missed myocardial infarction (MI) cases. This month, we cover specific documentation practices which can impact the outcome of a patient's lawsuit alleging a missed myocardial infarction.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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