EP Could Be Deposed if Patient Was Misdiagnosed at Another ED
June 1, 2022 3 minutes read
A patient’s X-ray shows a mass requiring a biopsy. The EP notices a prior study conducted a year earlier showed a nodule. Apparently, no one followed up on the concerning test result. The EP might be tempted to tell the patient about the mistake with a comment like, “You had a nodule, and an X-ray should have been done earlier, but unfortunately no one did anything about that.” However, well-meaning statements can lead to unintended legal consequences.
“Sometimes people think, ‘let me be the knight in shining armor and tell you about the error that happened.’ But that kind of conversation, in my opinion, really shouldn’t occur in the ED. It’s more for risk managers to do downstream,” says Bryan Baskin, DO, FACEP, quality improvement officer at the Cleveland Clinic’s Emergency Services Institute.
The EP does not know the whole story. It is possible there was no error, or maybe the error was made but it did not influence the patient’s outcome. Calling attention to “mistakes” that were seemingly made by other providers “just inflames the patient,” according to Baskin. “It escalates tension. It’s not helpful to the care of the patient.”
In the chart, the EP may document something like, “Patient had a nodule a year ago. Today, they have a mass on X-ray, and we are going to obtain a biopsy.” This documentation makes it clear someone should have followed up on the nodule, without using inflammatory innuendo. The problem is EPs sometimes believe they can reduce risk by blaming other clinicians. “The classic example is when they throw consultants under the bus in the chart,” Baskin says. “But all they do is increase risk globally for the case — and for every person who touched the case.”
Further complicating the situation is patients and family can easily read the documentation under the CARES Act. If the EP charted a comment that seems to suggest another provider missed something, it could trigger the patient or family to become suspicious and contact an attorney. “The same goes at the bedside. If you say, ‘Well, I don’t know why the other ED doctor wouldn’t have gotten a CT scan,’ you basically call out that there was an error that may or may not have caused the complication. You just inflate risk by doing that,” Baskin cautions.
If the patient or family files litigation, the EP who placed blame on another provider is likely to be deposed or even named as a co-defendant. “When you inflate the risk, there’s risk on everyone who saw that patient,” Baskin warns. A more reasonable approach is to stick with comments such as “I can’t speak for the other provider’s care. I can only speak about what should be done right now.”
EPs might assume making comments about which diagnostic tests another provider should have ordered makes them appear like an experienced clinician. In fact, the opposite is likely to happen. “It reflects poorly on the clinician, in a professional sense,” Baskin asserts.
The EP might be putting the patient’s trusted primary care physician in a negative light, which could end up offending the patient. If so, says Baskin, “even if you meet the standard of care, if there’s a bad outcome the patient may think: ‘This is a mean guy who talked badly about my doctor. It’s probably his fault.’”
Some patients put the EP on the spot by specifically asking if another provider made a mistake. Here, Baskin suggests EPs respond by stating they are not a primary care physician (or radiologist or specialist) and cannot presume to know exactly what happened.
“People get out of their sandbox a little bit and move into the wrong lane sometimes. The patient gets this idea on what should have happened,” Baskin reports. “There might be more to the story, and I’m not sure how it helps them to move on to the next care decision.”
Baskin says the important message for EPs is: “You are only increasing your own risk by pointing your finger at someone else. The risk is just going up for everyone.”
Beware making well-meaning statements or criticizing other clinicians in front of patients.
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