Chest Pain: Reducing the Legal Risks
November 1, 1998
Chest Pain: Reducing the Legal Risks
By Staci Bonner
Missed MIs are the largest single dollar loss in emergency medicine malpractice nationally, and chest pain liability risks are increasing, warns Eric Knox, MD, medical director of MMI Risk Management Resources, based in Deerfield, IL. "It’s becoming a more expensive category as time goes on because people are presenting at younger ages," he reports. "If you end up with a death following a misdiagnosis, you are liable for more damages if the patient is a 35 year old instead of a 75 year old, because of the way the legal process works."
Here are some ways to reduce risks of chest pain patients:
Adhere to risk management guidelines. A recent, 12-year study found that following risk management guidelines led to substantially lower average dollar losses per medical malpractice claim than following no guidelines at all.
More than 200 EDs were asked to collect data on patients complaining of chest pain. Results showed that more than one-half of the chest pain patients older than 30 years who were discharged left with a non-definitive diagnosis. "Those patients have almost twice the rate of unplanned returns to the ED within 48 hours, when compared with all patients discharged from the ED," says Pam Lockowitz, president of MMI, which developed guidelines in response to the study’s findings.
Patients discharged without a definitive diagnosis are more likely to return with an unplanned admission or death, stresses Lockowitz. "It’s important for providers to take a systematic approach to diagnose or rule out MI and reduce negative outcomes," she says.
Implementing chest pain protocols that address risk management issues is key, says Knox. "Timely and accurate diagnosis reduces the number of negative outcomes," he adds. "Cases typically involve not perfectly diagnostic ECGs, or atypical chest pain that gets misdiagnosed as muscular or stomach pain or something else."
A task force of ED physicians, nurses, administrators, and risk managers developed guidelines and the results were studied. "If the guidelines are followed in a given lawsuit, the cost is much lower than if one or more had not been followed," says Knox. "In many cases where there was litigation, the case would not have been brought if certain things had been done. If guidelines were applied consistently to every case, there would be fewer lawsuits."
The guidelines state that any patient older than 30 years with chest pain gets an ECG. "A lot of claims involve patients walking out without ECGs," says Knox. "Patients who don’t get ECGs are the ones who end up in court. Be safe and do the ECG."
Guidelines can improve identification of patients who are most at risk, and ensure that appropriate testing is completed. "The goal is to sharpen diagnostic accuracy," says Knox. "Instead of complicated pathways or algorithms, try to hit a median balance. You want to ask people to do important things, but keep it clear and simple."
Consider charting techniques. History is critical in chest pain patients, emphasizes Daniel J. Sullivan, MD, JD, FACEP, chairman of the department of emergency medicine at Ingalls Memorial Hospital in Harvey, IL. "On presentation, you cannot tell the difference between the clinical entities that cause chest pain without a complete history," he says.
"For example, a sudden onset of pain that is maximal at outset suggests a thoracic aortic dissection, whereas a more crescendo type pain suggests cardiac ischemia, a pain in the substernal area suggests ischemic pain, and pain in the substernal area that radiates straight through to the back is more characteristic of a thoracic aortic dissection," notes Sullivan.
Risk factor analysis in the history can also be invaluable, says Sullivan. "For example, there is an increased risk of thoracic aortic dissection in patients with a first-degree relative with the same problem, or in patients with a connective tissue disorder," he notes. "There are few things more important in the chest pain patient than a review of cardiac risk factors."
Documentation is essential in order to establish that the practitioner has met the standard of care in the evaluation of chest pain, Sullivan stresses. "If the practitioner documents these issues, the plaintiff must prove that he did not do the appropriate evaluation," he notes. "If the practitioner does not document these issues, the burden is on the practitioner to prove he did do the appropriate evaluation. It’s easy to see which road the practitioner should choose."
Orientation plays a critical role in risk management of chest pain patients, says Sullivan. "In a number of thrombolytic-related lawsuits, the emergency practitioner claims that he or she did not know that thrombolytics could be administered in the ED," he reports. "During litigation, the hospital presents an ED protocol that obviously includes ED administration of thrombolytics."
Include ECGs in abdominal pain protocols. MIs can be mistaken for abdominal pain, stresses Michael Kohn, MD, MPP, FACEP, attending physician for the department of emergency services and director of quality improvement for the ED at San Francisco General Hospital. "If a 60-year-old patient has a chief complaint of abdominal pain, the chest pain protocol doesn’t get triggered," he notes. "But when the patient is finally examined, it turns out to be very high abdominal pain, without a lot of tenderness, and ends up being an MI."
Abdominal pain protocols need to address this possibility, Kohn urges. "When you have an older patient with abdominal pain, you need to get EKGs on that patient very quickly," he says. "In our protocol, any patient over the age of 50 with abdominal pain gets an EKG soon as they hit the door."
Avoid giving medications to patients assumed to have abdominal pain without ruling out chest pain, says Knox. "Don’t rely on a GI cocktail. It may make people with ulcers feel better, but will also make people with heart pain feel better."
Educate staff about Troponin I. In the near future, ED chest pain protocols may include Troponin I testing. "There is a movement to use enzymes to improve our clinical judgment," says Kohn. "The initial cardiac Troponin I is going to possibly prevent us from sending out a patients if results are positive, which will help prevent missed MIs."
At San Francisco General’s ED, Troponin I is drawn upon the patient’s arrival. "Chest pain patients over the age of 35 with abnormal but non-diagnostic ECGS will get an initial cardiac Troponin I and be monitored for six hours, receiving a repeat ECG at three hours and six hours," notes Kohn.
If the initial Troponin I is positive or if the three-hour ECG shows concerning ischemic changes, the patient is admitted. "If not, a repeat Troponin I will be drawn six hours after the initial level," says Kohn. "If this second Troponin I is also negative, the patient will be discharged with precautions and close follow-up."
The strategy is also cost effective. "By sending these patients to the observation unit instead of admitting them to the hospital, we save money on false positives and reduce unnecessary admissions, which are a huge dollar expenditure," Kohn notes.
Still, cardiac enzymes are no substitute for clinical judgment, stresses Kohn. "They can only be used as an adjunct," he says. "For abnormal but nondiagnostic EKGs, clinical judgment is more sensitive, meaning the ED physician is going to send fewer MI patients home than just blind usage of cardiac Troponin I."
Use observation units appropriately. "If patients with normal EKGs are sent to observation units as a kind of hedging maneuver, the rule in rate would then be extremely low," notes Kohn. "What you’ll end up doing is keeping people in the ED unnecessarily who should have [been] sent home."
The solution is to follow a protocol that includes a chest pain observation unit, serial EKGs, and Troponin I, advises Kohn. "But you also need to do very aggressive quality control in that unit, to make sure the patients being admitted do have abnormal EKGs, and you are not admitting patients with such low risk for MI that they should have been sent home," he says.
The rule in rate for those patients should be higher than 10%, says Kohn. "If it’s lower than that, it means you are not using clinical judgment and filtering out very low risk patients who should be sent home without any observation," he explains.
An example of that type of patient is a 47-year-old man with a runny nose and cough who complains of six hours of intermittent chest pain, with no significant past medical history, says Kohn. "The exam reveals BP 150/90, otherwise normal vital signs, nasal congestion, and injected oral pharynx. No chest wall tenderness. CXR and ECG are normal," he notes. "This kind of patient has no business in a chest pain observation unit. In fact, we should be prohibited from enrolling any patient with a truly normal ECG into a chest pain observation protocol.’
On the other hand, take the example of a 47-year-old man with six hours of intermittent chest pain, says Kohn. "He thinks he might have a cold’ but denies runny nose or cough, has no significant past medical history, and the exam reveals a BP of 150/90, but is otherwise unremarkable. CXR is normal, but ECG meets voltage criteria for LVH and there appear to be repolarization abnormalities in the ST segments and T waves," he adds. "Because of his abnormal but non-diagnostic ECG, this patient might be appropriate for a chest pain observation protocol."
Getting a thorough history is key, Kohn stresses. "Obviously, we would get a much more detailed history from these patients, including severity, position, quality, radiation, and timing of the chest pain," he says. "We would also ask about risk factors for venous thromboembolism and cardiac disease."
Look for patients who don’t fit patterns. "You may see patients younger than 50 [years] or female nonsmokers with chest pain and say, this just doesn’t fit the profile of MI," says Lockowitz. "There is a nonspecific diagnosis that gets placed on a number of these patients, who are discharged, and within 48 hours have an unplanned return/death."
Have a high index of suspicion for atypical chest pain. "If a patient describes a pain in their shoulder and was playing touch football, think heart attack anyway," advises Knox.
The main thing to emphasize is the ECG, Kohn stresses. "If a young patient presents with atypical chest pain, is sent home, and ultimately turns out to have an MI, the ED care is much more defensible if it included a truly normal ECG," he says.
Editor’s Note: For more information on risk management guidelines and MMI’s report, "Transforming Insights into Clinical Practice Improvements: A 12-Year Data Summary Resource," contact MMI Companies, Inc., 540 Lake Cook Road, Deerfield, IL 60015-5290. Telephone: (847) 374-2400. Fax: (847) 940-2372.
Why Good Doctors Get Sued: A Risk Management Lesson
Physicians need to make increasingly difficult decisions about patient care these days. They are being asked to care for large populations of patients under managed care and risk contracts. Meanwhile, they must stay continually abreast of new technological advances, new drug regimens, and other changes in acceptable medical practice.
And all of this is occurring within an atmosphere that places patients at odds with their insurers and sometimes, even with their physicians.
So how can physician groups reduce the risk of being sued for malpractice in this evolving health care world?
The biggest answer boils down to improving patient communication, says Ross M. Miller, MD, MPH, a Los Angeles medical director of quality management and risk management for a large Southern California managed care organization (MCO). The MCO asked not to be identified.
Miller’s responsibility as medical director of quality includes reviewing all member complaints from HMO members about alleged quality-of-care deficiencies, known as member perception reports.
One of the largest categories of complaints is in the area of communication, Miller says.
Most of the time, physicians could alleviate this type of complaint, Miller says, by asking a patient a simple question at the end of the visit: "Have I answered all of your questions?" or "Is there anything else you need today?"
Communication skills are important
Physicians who have good communication skills are less likely to be sued, Miller says.
"Studies show that patients with good doctor-patient relationships, even with the same adverse outcomes occurring, have less chance of being sued," he explains.
Miller lists these three explanations as possibilities for why good physicians get sued:
• They forget or fail to recognize how patients perceive quality.
• They do not employ personal risk management strategies in daily practice.
• They get caught in system failures.
With these points in mind, Miller offers these guidelines to preventing lawsuits and other patient problems:
1. Understand what patients want.
Patients perceive quality medical care based on a variety of criteria, including how well they feel and function after visiting the provider, Miller says.
Does the patient feel or function better after the doctor visit? If not, then the patient may not be satisfied with the care.
For example, suppose a patient goes to the emergency department for coughing and cold-like symptoms, and the doctor diagnoses bronchitis and prescribes an antibiotic. The infection gets better, so the physician believes the patient has received the correct diagnosis and treatment.
However, the patient may still feel miserable, and unhappy with the care.
"If their ability to function in daily life isn’t better by the next day, and that’s their expectation, then they will perceive it as a poor-quality intervention," Miller says.
It’s important to make sure the patient understands how long it will take for the medication to work and alleviate the symptoms.
"The bottom line is that when you have poor physician patient communication, that can lead to complaints," Miller says.
2. Enhance communication skills.
These days, there are more opportunities for communication problems because patients no longer are treated solely by one physician or provider.
"We work in systems; the days of the solo practitioner hanging out a shingle are pretty much over," Miller says.
Now physicians work in provider groups and integrated delivery systems, so a failure can be within the system, he adds.
Physicians often feel rushed when they’re seeing their patients and this can lead to giving their patients an inadequate evaluation.
The HMO has included articles on effective communication in its provider newsletters, and the company has referred physicians to communication skills courses.
"If we notice a trend of providers having issues related to poor communication or poor quality then we may put those doctors on some type of action plan," Miller says.
An action plan might include attending a communication skills course, receiving counseling, or something as simple as having the physician change lengths of appointment times in the schedule, to allow a little more time with each patient.
The HMO places data regarding member perception reports about providers in a credentialing file. All providers are recredentialed at least every two years.
Also, Miller’s organization tracks and trends all quality-of-service issues that members have identified as problems.
Communication skills include the physician’s:
• "bedside manner," and verbal or nonverbal behavior;
• attitude about patients, such as rushing, ignoring, or being curt with patients.
3. Obtain informed consent.
Usually this should be obtained in writing. Its purpose is to inform the patient of the information that a reasonable person would want to know about a procedure before making a decision, Miller says.
Each state has its own rules about what is required as far as consent documentation, but this also is important for the physician’s own protection.
"One of the skills of risk management is to have documentation of informed patient consent," Miller says. "If patients know what might happen then they’re not surprised, and then if an adverse event occurs they’re not as angry."
Informed consents do not protect physicians from allegations of negligence, although they could reduce the chances of malpractice suit.
Physicians also should practice informed consent communication in their daily patient encounters as a good risk management practice, Miller says.
For example, when prescribing a medication, a physician might inform the patient that not all of the patients who take this medication get better.
Physicians are having a tough time right now, and that’s making them focus a lot on what they’re doing and changes in health care systems.
Although these changes have made many physicians anxious, they still need to pay close attention to basic risk management, Miller says.
4. Keep thorough documentation of patient encounters.
Documentation can be a physician’s best friend or worst enemy when it gets into the hands of lawyers, Miller says.
"Attorneys get ahold of the medical records, and a lot of times that determines whether they have a case," he explains.
To document effectively, Miller says, physicians should do the following:
• Communicate information about the care in order to give credit for what was done in the event of an adverse outcome.
• Be accurate, comprehensive, timely, legible, and objective.
• Reflect the provider’s thinking and develop an action plan.
• Be careful with subjective judgments, such as criticisms of other care and disagreements with staff.
• Avoid certain language, such as the words "accidentally" and "erroneously."
• Never use an inadequate report.
• Do not ever change the record.
5. Manage bad results.
Once an adverse outcome has occurred, there are certain strategies a physician may use to manage the situation. The provider should meet with the patient and family to answer their questions thoughtfully, Miller says.
The provider should summarize the entire situation and provide full disclosure, without accepting responsibility. This is a good opportunity to allow the patient and family to vent emotions and to provide him or her with empathy.
Finally, the provider should make sure the patient knows what will be done about the situation and how progress will be communicated.
It’s important for physicians to understand the dynamics of what a patient goes through and how to minimize the patient’s anger after something bad has occurred, Miller says.
"The bottom line is to not hide anything, but to realize that your initial reaction is to be defensive," he adds.
When physicians or other providers become defensive they may take unwise actions, such as changing a medical record or refusing to return the patient’s phone calls.
Instead, they should try to understand the whole dynamic behind a patient’s behavior and be careful not to do or say anything that might sabotage the chance of preventing a lawsuit, Miller says.
"Make sure you receive some guidance and advice either from your insurance company or a risk manager or legal contact about what to say and whom to say it to," Miller says.
Watch for legal risks when hiring
By Staci Bonner
Hiring, interviewing, and reference checking present significant liability issues for ED managers. "This is a very difficult area, which is fraught with legal risks," says Tallien Perry, JD, a Los Angeles-based health care attorney. Here are some ideas to consider:
Avoid interview questions that pose legal risks. When interviewing clinicians, it’s important to avoid asking questions pertaining to age, sex, race, or national origin. "Also, avoid general open-ended questions about disabilities, illnesses, or injuries. Any such questions must be specifically job related," says Roger King, JD, a Columbus, OH-based partner in the labor and employment division of Jones, Day, Revais, and Pogue. "In general, avoid questions that don’t shed light on the ability of person to perform the central function of the job."
Children or childbearing issues should not be raised. "You can ask as to whether the applicant would foresee any difficulty in regularly reporting to work, but you should not disqualify any applicant because of child care responsibilities at home, since that is a potential form of sex discrimination," says King.
Check certifications adequately. "In some instances, people have falsified their medical credentials and represented themselves as nurses and physicians," says King. "Due diligence in checking must be carried out by the employer; otherwise, negligent hiring issues arise. If malpractice claims were filed and it was discovered that the practitioner was not properly educated or licensed, not only is the hospital liable for the initial damages, but it is also facing potential punitive damages."
Check background adequately. If a hospital should have known about an employee’s propensity to commit violent crimes such as child abuse, and a patient was later assaulted in the ED by that nurse or physician, that hospital could be liable. "In that scenario, there is potential for high multiple punitive damage in the millions of dollars," says King.
Adequate checking is essential. "You can do checks with the bureau of motor vehicles in most states, and get a release from prospective employees to initiate a check of any criminal or civil proceedings they may have been involved in," recommends King. "Also, obtain a release to at least attempt to obtain personnel records from previous places of employment."
Get relevant information during the interview. When interviewing applicants, it’s essential to cover key areas that can pose legal risks. "Have the applicant fill in all potential gaps in their employment background," King advises. "You need to ascertain whether applicants have been involved in any civil or criminal litigation, and can ask whether they have been convicted of any crimes. You should also ask if they have ever been denied staff privileges at other institutions and if so, why? Ask if the applicant is eligible for rehire at their previous place of employment. If they say no, you can probe as to why."
Don’t explain why an applicant was not hired. "You have no obligation to tell someone why they were not hired. Simply say you have selected someone else, and leave it at that," says King. "Many employers get trapped into giving full detailed reasons, which end up being used against them in a claim."
Ask objective questions. When doing background checks, the way questions are phrased can affect the responses you receive. "You cannot ask open-ended questions about mental or physical fitness, but you can ask whether an applicant has any condition that would prohibit him or her from performing the essential aspects of the job, and attach the job description," says King. Employers have a right to ascertain whether applicants are qualified to perform specific assigned job duties, he explains.
"Don’t ask, do you think this nurse has a good personality?’ Ask direct questions that are objective," says Sue Dill Calloway, RN, MSN, JD, director of risk management for the Ohio Hospital Association in Columbus. "For instance, ask how many days of work they missed, did you ever make entrances in their record regarding standard of practice issues, is there any documentation in the record about being disciplined for a problem. Either there is or isn’t."
If the hospital’s policy is to only give out date of hire and salary, be creative in searching for other sources of information. "Ask the applicant for the names of immediate supervisors or colleagues they worked with in non-supervisory positions," King recommends. "The lower you go in the chain of command, the more apt people are to talk to you."
Be aware of current laws regarding reference checking. A majority of states have adopted laws that protect former employers who provide truthful, accurate information. "Most states have passed laws providing immunity if giving accurate information in good faith," notes Calloway.
The state laws protect former employers from civil action. "If I decide not to hire a nurse because of something they told me, she may want to sue them. But if the information the supervisor gave is true and accurate, then the hospital has immunity," says Dill.
If applicable in that state, reminding former supervisors about the law often results in more frank discussion. "When you are requesting information, start off by saying, you may be aware that we have a law that protects you giving me truthful information," Dill recommends. "That will make them feel more comfortable."
Don’t give subjective information when providing references. "You can discuss attendance, punctuality, evaluations they were given, whether or not they are eligible for rehire, or whether they received any disciplinary action or not," says King. "Those are all verifiable objective issues."
Avoid making subjective comments, such as saying an employee had a bad temper. "Stay away from social or psychological analyses," says King. "However, you can say that the department had complaints from patient or families, if that fact is documented and verifiable, regardless of whether the complaints were valid or not."
Information that is factually provable is generally safe to share with prospective employers. "The bottom line is, if you can back up the statement with objective evidence and have no reason to believe it is false or untrue, you can refer to it," says King. "However, if you knew those complaints were not accurate, you should not share them."
Check references adequately. Employers have a duty to check references that the employee provides them with, says Dill. "You need to do as much checking as possible, finding as many people who can speak to the competence of the employee," she explains. "The main question you need to pose is whether or not they would rehire that person."
But that task can be difficult. "Generally, hospitals prohibit their human resources or personnel departments from providing any information other than job title, date of hire, and sometimes salary level, and sometimes will only confirm a salary that was specified by the employee," notes Perry.
Even problems that affect work performance, such as a history of substance abuse, may be difficult to discover. "There are confidentiality prohibitions against releasing information on an employee’s medical records or substance abuse problem, so it may be difficult to get that information," says Perry.
Don’t hesitate to contact former colleagues. "When an applicant names a specific individual in a facility as a reference and indicates that you may contact that individual, then there is nothing to prohibit you from calling them directly," says Perry. "Usually, people will include as references only the supervisors with whom they have had a good relationship."
Still, you can learn a lot from speaking with that supervisor, Perry notes. "If that supervisor does not have a company policy, or if the supervisor chooses to ignore that policy, then you can talk freely with that person," she says.
It’s generally not necessary to obtain written consent to contact individuals named as references. "The fact that an applicant puts an individual’s name on his or her resume or employment application is generally enough," says Perry. "On the other hand, if you want to contact an individual not named as a reference, for example the director of nursing, then get the applicant’s permission in writing, signed and dated."
It’s a good idea to get written consent if you plan to contact other colleagues. "Ask the applicant to give permission in writing to check past and present employers," says Dill. "If they won’t sign that, you probably ought not to consider them at all."
Obtain legal advice regarding state laws. ED managers should have inservicing by local legal counsel who specialize in labor law, Perry advises. "For instance, there are many different traps that a potential interviewer could fall into," she says. "An attorney can provide a set list of questions which are appropriate, and a list of questions not to ask, even indirectly."
Don’t withhold pertinent information if laws permit it. There is a liability risk if hospitals withhold pertinent information. "If Doctor A knows he is about to lose his license, but resigns before Hospital A can terminate him, and Hospital B sends a release form to check references, and Hospital A says it’s our policy to only give out salary information, that can be a problem," says Dill. "Hospital A has a duty to speak up if a doctor sexually molests patients."
If the hospital does not offer that information and a patient later sues for malpractice, Hospital A can be liable, Dill notes. "At first, people were telling things they shouldn’t, and everybody started getting sued," she explains. "Then the pendulum swung the other way where former employers weren’t telling them anything, even things they should have known. Now we are restoring a balance, where people can give out truthful things which impact job performance."
Don’t require a prehire physical. "If you want to hire someone, you can’t do a pre-employment physical. You have to hire someone contingent on the basis of them passing a physical," says Dill. "The only exception is you can do drug screening before employment, but other than that, you need to send a letter saying you are offering a job, conditioned on passing a post-offer employment physical."
Test for substance abuse. Legally, you can and should test for substance abuse before offering a clinician a job, says King. "You need to ensure you are not hiring anyone with a substance abuse problem, given the access to medication in the ED," he emphasizes. "The hospital is going to be held to a very high standard in the eyes of most courts and juries, and also viewed as a deep pocket because of perceived high levels of insurance coverage. So even if they show valid arguments in court, the jury may still have so much sympathy for a plaintiff that they award a large verdict."
[Editor’s Note: Legally Interviewing, Selecting, Hiring, and Firing Staff by Daniel Sullivan, JD, MD, FACEP, is available from the 1997 ACEP Management Academy. Cost is $22 for members and $26 for nonmembers. To order a copy, contact ACEP Publications, PO Box 619911, Dallas, TX 75261. Telephone: (800) 798-1822 or (972) 550-0911. Fax: (972) 580-2816.]
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