ED Care Difficult to Defend if Patient Died Shortly After Discharge
September 1, 2017 5 minutes read
A substantial number of patients die soon after discharge from EDs, despite no evidence of previous life-limiting illnesses, according to the authors of a recent study.1 “A patient who dies unexpectedly soon after being sent home is every emergency physician’s greatest fear,” says Ziad Obermeyer, MD, the study’s lead author. Obermeyer is an assistant professor of emergency medicine at Brigham & Women’s Hospital and an assistant professor of healthcare policy at Harvard Medical School in Boston.
Researchers analyzed claims data for Medicare beneficiaries who visited an ED from 2007-2017 and were discharged home, and found that 0.12% died within seven days.
The leading causes of death were atherosclerotic heart disease, myocardial infarction, and COPD. Altered mental status, dyspnea, and malaise/fatigue were more common among early deaths compared with other ED visits.
“These events point out the limits of our understanding of patients’ problems,” Obermeyer says. “It’s a catastrophic failure of our ability to predict risk. And it’s terrifying.”
Another concerning thought is that deaths may be the tip of the iceberg and an indication of a broader patient safety problem. “A lot of bad things have to line up for a patient to die,” Obermeyer notes. “A lot more patients could be seriously disabled or otherwise affected by missed diagnoses without dying.”
Small increases in admission rates were linked to large decreases in risk. Hospitals in the lowest fifth of rates of inpatient admission from the ED demonstrated the highest rates of early death, despite the fact that hospitals with low admission rates served healthier populations. Considering this finding, Obermeyer suggests EDs study the percentage of all Medicare patients seen in the ED who are admitted.
“This is probably the best indicator of whether or not there could be a problem in your ED,” Obermeyer offers. If the ED is near the lowest quintile of inpatient admission rates for these patients (less than 22%), it doesn’t necessarily mean there’s a problem. “But I would do some serious thinking about why that is happening and if there is anything you should be doing differently from a safety point of view,” Obermeyer adds.
Cases involving patients who died shortly after discharge from an ED are difficult to defend. This is true even if there is no direct link between the ED care and the patient’s death.
“The jury expects you to be able to help everybody when they come to the ED. If the ED sent someone home who died, in their minds it’s an inference that you didn’t do everything you could have done,” says Joan Cerniglia-Lowensen, JD, an attorney at Pessin Katz Law in Towson, MD.
A recent case involved a patient who presented to an ED with a vague history of periodic chest pain over the past few months. At the time of the ED visit, the patient was not actively experiencing chest pain. An ECG and the patient’s blood pressure were both normal. The EP recommended the patient undergo a full cardiac workup, including a stress test, and gave the patient the name of a cardiologist to visit.
“Walking up the front steps of his house that same day, the patient had a sudden cardiac event and died,” Cerniglia-Lowensen says.
The resulting malpractice lawsuit included these allegations:
- The history obtained by the EP was cursory.
“The plaintiff argued that had the ED provider explored what factors brought on the chest pain, it would have been a further indicator that the patient may have been having an ischemic event,” Cerniglia-Lowensen explains. The ED defense team countered that the patient was stable at the time of discharge, and that appropriate follow-up instructions were given.
- The EP should have performed additional diagnostic tests and obtained a cardiology consult.
The plaintiff alleged that if the EP had done so, the patient still would have been in the ED when the cardiac event occurred. Thus, ED staff would have been able to save his life.
“The plaintiff was able to find an expert that said the report given by the patient was so concerning that we had an obligation to do further workup, and that it should have triggered the ED provider to get the cardiac consult right then and there,” Cerniglia-Lowensen recalls.
The case was settled, but not because the EP had done anything wrong. “Because the timeline was so damaging, it would have been very difficult for a jury to find for the defendant,” Cerniglia-Lowensen notes.
Cerniglia-Lowensen has handled three similar cases recently, all involving early deaths after discharge from an ED.
“Part of it is that families of patients who die in that manner think the ED must have done something wrong, so they tend to get a lawyer and file a claim,” she says.
Plaintiff lawyers tend to take such cases. “We’ve all seen those cases of people who go to the ER and look completely normal, then walk out the door and drop dead,” Cerniglia-Lowensen says. “Lawyers find them attractive claims, because they have a certain amount of jury appeal.”
Cerniglia-Lowensen says this documentation is helpful to the ED defense:
- a complete description of the plaintiff’s symptoms;
- documentation that the patient was stable at discharge, and/or exhibited no symptoms at the time of the ED discharge;
- that the EP gave the patient a clear timeframe for follow-up;
- that the patient understood when to return to the ED. “Be careful not to say, ‘I can’t find anything wrong with you,’ because patients won’t follow up,” Cerniglia-Lowensen stresses.
- why the EP believed it was safe to discharge the patient.
Often, ED charts are silent on this important point. “Sometimes, you’ll see a vague comment. ‘Patient told to come back or dial 911 if symptoms return,’” Cerniglia-Lowensen says. This leaves a lot of room for a plaintiff attorney to argue that it was unsafe to discharge the patient. “You don’t get a feel for what the doctor was thinking, about why it’s safe for the patient to go home in the condition they’re in right now,” Cerniglia-Lowensen explains.
- the EP facilitated follow up by proving the name of a provider.
- names of individuals who were with the patient in the ED.
“You always wind up with family members who say, ‘We told the doctor X, Y, and Z,’ or ‘The doctor never asked us about that,’” Cerniglia-Lowensen notes. “That’s a big problem.”
However, ED charts rarely document the presence of family members or the fact that the patient came alone. A recent case involved a patient who came to the ED by herself. After a malpractice lawsuit was filed, her daughter claimed to have been present the entire time.
“She claimed she saw the nurses do certain things, and the ED nurses said it never happened,” Cerniglia-Lowensen says. “It was very helpful to have a nursing note stating that the patient was unaccompanied.”
Typically, plaintiffs also argue that if the EP’s differential diagnosis includes anything that’s life-threatening, that the standard of care requires the EP to rule it out. “I hear that in every one of these cases. If the jury buys that, you’re done,” Cerniglia-Lowensen warns.
REFERENCE
- Obermeyer Z, Cohn B, Wilson M, et al. Early death after discharge from the emergency departments: Analysis of national US insurance claims data. BMJ 2017;356:239:1-9.
SOURCES
- Joan Cerniglia-Lowensen, JD, Pessin Katz Law, Towson, MD. Phone: (410) 339-6753. Fax: (410) 832-5626. Email: [email protected].
- Ziad Obermeyer, MD, Department of Emergency Medicine, Brigham & Women’s Hospital, Boston. Phone: (617) 525-3133. Fax: (617) 264-6848. Email: [email protected].
Such cases are ‘every emergency physician’s greatest fear.’
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