Many times, a careful review of the emergency department (ED) chart convinces plaintiff attorneys not to sue — even if at first glance, the malpractice case against the emergency physician (EP) sounded rock solid.
When a patient’s lawyer reviews the ED chart, he or she is looking for a clear line of logical thinking in the workup, says Patrick Malone, JD, a Washington, DC-based plaintiff’s attorney. Malone is co-author of Rules of the Road: A Plaintiff’ Lawyer’s Guide to Proving Liability (Trial Guides, 2010).
“If it seems well thought-out, and each decision is justifiable based on the science and what was known about the patient at the time, the fact that the diagnosis turned out wrong in hindsight doesn’t make it a viable malpractice case,” Malone says.
A plaintiff lawyer looks for this information when reviewing an ED chart, says Malone: What were the signs and symptoms the patient first presented with? How did the EP respond? Did the tests that were ordered make sense for the initial presentation? When those results came back, did the EP’s next step make sense in light of the new information?
One prospective malpractice case involved a patient with sudden onset of headache and weakness. The EP investigated first with a CT scan of the head, which was normal. Because he was still worried about the possibility of subarachnoid bleeding not picked up by the CT, he then elected to do a lumbar puncture.
“Testing after that revealed the patient actually had a clot blocking one of the arteries in the brain, and the LP ruled out the ability to try to break up the clot with tPA [tissue plasminogen activator],” says Malone. The patient was left with significant deficits. “However, the sequence of testing was hard to argue with because it was reasonable and followed a logical set of steps,” says Malone.
Tell Why Diagnosis Is Not Suspected
Jonathan A. Edlow, MD, vice-chairman of the Department of Emergency Medicine at Beth Israel Deaconess Medical Center in Boston, has reviewed several cases in which the EP had the wrong diagnosis and the patient had a bad outcome, but the explanation in the chart was easy to follow, logical, and reasonable.
“I wouldn’t testify against a person in such a situation,” he adds. “I recall a case in which I defended a physician who had missed a diagnosis of subarachnoid hemorrhage (SAH).”
The patient came to the ED with an extremely unusual presentation of acute back pain without headache. This was documented by the paramedics, the triage nurse, and the EP. “There was a bad outcome, but the physician had done a reasonable job and documented her thought process well,” says Edlow.
Edlow says that in his own charting, “I will very frequently write, ‘I do not think the patient has X, Y, and Z because of A, B, and C.’” For instance, he might document, “I do not think this patient with dizziness has a cerebellar stroke because the physical examination strongly suggests a peripheral process; therefore, I do not think he needs brain imaging,” or “This headache has multiple factors (gradual onset, similar to multiple prior episodes) that are not typical of SAH. Therefore, I am treating the patient for migraine and will arrange for neurology follow-up.”
“The reality is, you might be right and you might be wrong,” says Edlow. “But it’s always better to be thoughtfully wrong than negligently wrong; it’s always better, in the setting of a lawsuit, that you’ve documented your thinking.”
An example is an EP’s documentation that he or she does not suspect pulmonary embolism (PE) because a patient is negative according to Pulmonary Embolism Rule Out Criteria (PERC). “That is a fairly well-validated set of findings; if the patient has none of them, the likelihood of PE is not zero, but it’s extremely low,” says Edlow.
On the other hand, if a patient presents with several known risk factors for PE, chest pain, and hypoxia, and the EP charts, ‘I don’t think this is PE because there is no shortness of breath,’ “then that’s just not enough,” says Edlow. “The logic is flawed; absence of shortness of breath simply does not cut it.”
Edlow says when the EP is signing the patient out to the next team at change of shift, it is a good time to reconsider the plan of care. “Many times, as I am listening to my sign out, if it just doesn’t hold water, or if it sounds defensive even to me, I may change my mind and go ahead and do a test that I previously wasn’t going to do,” he says.
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Jonathan A. Edlow, MD, Department of Emergency Medicine, Beth Israel Deaconess Medical Center, Boston, MA. Phone: (617) 754-2329. E-mail: [email protected].
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Patrick Malone, JD, Washington, DC. Phone: (202) 742-1500. Fax: (202) 742-1515. E-mail: [email protected].
