After a patient who presented to an ED with chest pain, diaphoresis, and shortness of breath was discharged and later suffered a myocardial infarction (MI), the family sued the EP, alleging failure to obtain a cardiology consultation. The case was quickly settled.
“I don’t think most jurors would believe an ED physician is in as good of a position to diagnose a cardiac condition as a cardiologist,” says Russell X. Pollock, Esq., an attorney at Bergstresser & Pollock in Boston, MA, who represented the plaintiff.
Another factor complicating the EP’s defense was that the patient had signs and symptoms of an MI, and that a cardiac consultation most likely would have led to a timely diagnosis and treatment of the condition.
“Most jurors would believe that a cardiac consult should be available, if needed, at major medical centers and even most smaller hospitals,” Pollock says. The same arguments could be made with respect to stroke and neurology consultations, he adds.
A malpractice case with a similar fact pattern, still pending, involves a patient with stroke symptoms who was discharged from an ED without receiving a neurology consultation. The patient later suffered a severe stroke.
“If a condition requires work-up from medical specialties, the ED physician should put in a timely request for the consultation,” Pollock advises.
If an imaging study reveals free air, for example, a patient should not be discharged without further consultation and likely emergency treatment, Pollock says.
“A presumed diagnosis of enteritis will not carry the day,” he notes.
Similarly, a patient with abdominal pain, hypotension, and lethargy should not be discharged without further consultation and diagnosis of the cause.
“The patient reporting they might have gotten food poisoning does not carry the day,” Pollock explains.
Pollock is handling several malpractice claims alleging that the tissue plasminogen activator should have been administered to minimize injury from clots.
“A claim that a neurology consult was not timely obtained can be made in those cases in which there was a therapy that could have resolved or mitigated the results,” he notes.
Pollock says EPs should be particularly mindful of the timeline from arrival to diagnosis.
If a patient comes to the ED with a severe condition, is not seen or diagnosed rapidly because a consult is delayed, and then dies or is seriously injured by the condition, he warns, “one could envision a case of negligence stemming from the delay.”
Weigh Risks and Benefits
If a consult is considered but not ultimately ordered, EPs should document the reason why not, Pollock recommends. “Of course, this presumes good medicine is being practiced,” he notes. “If you document poor judgment, the documentation is not going to help defend the physician’s actions.”
Since EPs cannot order consults on every patient, they need to weigh the risks and benefits of an emergent workup vs an outpatient work-up, says Bobbie S. Sprader, JD, an attorney at Bricker & Eckler in Columbus, OH. She says these are important things for EPs to consider to minimize the risk of future liability, should a patient deteriorate before a work-up is completed as an outpatient:
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How likely is it that the patient’s condition will deteriorate before an outpatient workup can be performed?
“The EP will need to take into account the expected disease progression, and the speed with which that patient can reasonably be expected to complete the needed workup,” Sprader says. Once the EP has considered these factors and makes a recommendation, the EP’s thought process should be explained to the patient, and the patient’s understanding documented.
“This discussion should include recognition that there is a risk the disease could progress faster than the EP currently predicts,” Sprader notes.
She gives this example of good documentation: “Patient understands that Dr. Jones believes that his condition does not require an emergent work-up, and is discharging him for an outpatient work-up with Dr. Smith that should occur within the next 7-10 days. Patient understands there is no guarantee his condition will not progress or deteriorate in the next 7-10 days. Patient will immediately return to the ED if symptoms change or progress or if he has any concerns that may warrant an emergent work-up.”
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What degree of morbidity and mortality is likely to result if the disease does progress before an evaluation is completed and treatment implemented?
“It goes without saying that if the EP thinks the patient is at risk for a disease that would result in significant morbidity and/or mortality if not evaluated and treated before it progresses, then this needs to be factored into the decision,” Sprader explains.
If the EP decides it is appropriate to proceed with an outpatient work-up, the patient should be made aware of the importance of timely follow-up, she adds, and be given specific instructions as to what symptoms to look for that would warrant a return to the ED.
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What is the likelihood the patient will follow through with the recommended outpatient work-up?
“This is really an assessment of patient compliance, which is hard for an EP to do reliably with just the one isolated encounter with the patient,” Sprader says. If an EP suspects the patient requires further evaluation or treatment and is likely not going to follow-up either timely or at all, this may weigh in favor of ordering a consult to get the work-up done emergently.
“At a minimum, the EP should document having made the recommendation for an outpatient work-up and having emphasized the importance of getting that work-up done and done in a timely fashion,” Sprader says.
ED patients who are being discharged should be told their condition could deteriorate faster than expected, Sprader warns. “The importance of a timely work-up should be explained,” she adds. “Ideally, this discussion should be witnessed and documented.”
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Russell X. Pollock, Esq., Bergstresser & Pollock, Boston, MA. Phone: (617) 682-9061. Fax: (617) 451-1070. E-mail: [email protected].
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Bobbie S. Sprader, JD, Bricker & Eckler, Columbus, OH. Phone: (614) 227.2315. E-mail: [email protected].
