Hard-to-Dispute Evidence Shows EPs Were Not Negligent
June 1, 2017 4 minutes read
A patient was brought by his family to an ED because of concerns about unusual behavior and depression. “The patient was annoyed with his wife and adult children for forcing him to see a physician,” recalls Corey M. Slovis, MD, professor and chairman of the department of emergency medicine at Vanderbilt University Medical Center in Nashville, TN. The EP evaluated the man, who was transferred to the hospital’s psychiatric evaluation area and later admitted for 24-hour observation.
“The patient retained legal counsel months later for the humiliation of being required to undergo psychiatric evaluation,” Slovis says. The man alleged that a single cursory evaluation by the triage nurse and a resident physician resulted in an improper forced admission. He also alleged that no attending EP ever evaluated him.
The plaintiff noted that many of the triage nurse’s comments also appeared in the ED attending’s documentation. The lawsuit further alleged these were just copied without an in-person evaluation by the ED attending. “The patient was adamant that no attending ED physician ever laid eyes on him,” Slovis says.
The electronic medical record (EMR) showed similar verbiage quoted by both the attending EP and the triage nurse, and the notes were documented just minutes apart.
“However, the EMR had three other separate timestamps of the physician reevaluating the patient, quoting other things he claimed, and documenting his responses to concerns raised by his family,” Slovis says. The EP’s documentation also commented on the patient’s unusual outfit, a piece of information that was not included in the ED nursing notes.
Based on multiple reevaluations included in the EMR, quotes that could not have been made unless the EP had asked specific questions about family members, and the fact that the attending EP could describe the patient’s attire, Slovis says “the case was rapidly decided against the plaintiff.” Here are other ED malpractice cases in which EMR documentation helped the defense:
- EMR documentation countered allegations that a two-hour delay in evaluation contributed to the patient’s bad outcome.
The defense used the EMR audit trail to show that the EP was seeing several other patients actively at the time the plaintiff was waiting to be seen. Each had been triaged as more emergent than the plaintiff, or had been waiting longer than the plaintiff.
“It completely nixed that allegation against the ED doctor,” says Jesse K. Broocker, JD, an attorney at Weathington McGrew in Atlanta.
In general, Broocker sees plaintiff lawyers asking for the EMR and audit trail records more frequently in malpractice litigation. “If clever, they may seek an expedited deposition of the ED doctor, commit them to a version of events, then fact-check against the audit trail to see if the timing of everything checks out,” Broocker says. Plaintiff’s lawyers search for even minor discrepancies between the EP’s testimony and the EMR documentation.
“Even innocuous things like ‘I always review the transfer notes’ — in a case where that has nothing to do with anything — where it turns out that did not happen, will be spun as evidence of overall sloppiness,” Broocker says. The plaintiff attorney then can ask the jury, “If the EP failed to follow his own standard of practice here, where else did he fail?”
Broocker has begun asking for EMR audit trails from hospital attorneys, who usually are co-counsel, early in litigation. This way, the EP defendant is aware of what the EMR shows he or she was doing and when.
“Timing issues are almost always paramount in ED cases, and the records can make or break a case,” Broocker explains. “I’d rather know bad news early so we can handle it moving forward.”
- EMR documentation contradicted the plaintiff’s allegation that the EP failed to inform him of X-ray results showing a mass and recommending follow-up.
“The metadata is what saved us. It proved we contacted the patient and told them the results,” reports Stephen J. Seitzman, a senior claims specialist at ProAssurance Companies in Wilmington, DE.
The EMR contained the ED nurse’s note, in her own handwriting, regarding the X-ray result. She noted that she told the patient of the results, and that the patient stated he would follow up with his primary care physician. The malpractice litigation was dropped. “The plaintiff expert saw it was rock solid, and clearly showed the patient was told the results,” Seitzman says.
SOURCES
- Jesse K. Broocker, JD, Weathington McGrew, Atlanta. Phone: (404) 524-1600. Fax: (404) 524-1610. Email: [email protected].
- Stephen J. Seitzman, Senior Claims Specialist, ProAssurance Companies, Wilmington, DE. Phone: (302) 654.8689. Fax: (302) 654-8661. Email: [email protected].
- Corey M. Slovis, MD, Professor and Chairman, Department of Emergency Medicine, Vanderbilt University Medical Center, Nashville, TN. Phone: (615) 936-1315. Email: [email protected].
Malpractice case ‘rapidly decided against the plaintiff.’
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