By Stacey Kusterbeck
Some chest pain patients are discharged from the ED without ever undergoing an emergency physician (EP) evaluation. Inevitably, some of these patients experience poor outcomes.
“I have seen cases where patients with acute chest pain presentations were managed and discharged by physician assistants [PAs] or nurse practitioners [NPs] with no physician involvement, with disastrous consequences,” reports David Sumner, JD, a Tucson, AZ, medical negligence specialist with a multistate trial practice.
One such case involved an obese, hypertensive man who presented to an ED with chest pain and other cardiac risk factors. The NP discharged the patient with a gastrointestinal diagnosis. Hours after leaving the ED, the patient died. An autopsy revealed plaque rupture in a major coronary artery.
The patient’s family filed a lawsuit. There was no documentation indicating the supervising EP ever evaluated the patient, complicating the defense. “Some presentations should always have direct involvement of the supervising EP,” Sumner says.
In Sumner’s view, older patients with multiple cardiac risk factors and chest pain fall into this category. Generally, NPs and PAs probably should not be managing certain patients based on triage designation and other risk considerations. “Too many variables and nuances exist as to interpretation of ECG findings,” he explains.
Examples include cases of non-ST-elevation myocardial infarction (non-STEMI). Other cases might require interpretation of sequenced high-sensitivity troponin values that exceed the 99th percentile reference range, but not markedly so. NPs and PAs “should not be making many of these more nuanced or complex calls,” Sumner argues.
Ideally, when NPs or PAs are managing a chest pain patient, the EP’s documentation should include an indication the EP personally reviewed the ECG and that he or she personally evaluated the cardiac enzymes or other lab evidence. If appropriate, document the EP personally examined the patient.
Legally, it is problematic if charts include only retrospective documentation on these important points. Commonly, the medical record includes only general statements, such as the EP was “present” at the time of the visit.
“This will not be sufficient evidence of supervisory involvement by the EP during the time the patient was being managed by an NP or PA,” Sumner cautions.
Audit trails will reveal whether the EP reviewed the chart and other relevant data before the patient left the ED — or if it was conducted hours later. “EMR audit trail evidence can support the defense substantially when the audit report reflects detailed, conscientious chart interactions — and when the audit report is consistent with the clinical charting,” Sumner says.
The opposite also is true. The audit trail can be devastating to the defense if it conflicts with something the EP documented. Also problematic is an audit trail showing the EP never interacted with a complex, high-risk patient managed by an NP or PA.
Sumner says NPs and PAs should document the time of every consultation with supervising EPs occurring before the patient was discharged, along with any relevant considerations discussed with the supervising EP. Also, add any specific advice or directions the EP provided, if any. “Excellent, accurate charting is always the best defense,” Sumner adds.
Beth W. Kanik, JD, details commons questions arising in litigation involving NP/PA evaluation of ED patients:
• Would the supervising EP have made different decisions if he or she actually evaluated the patient? This issue becomes a central focus of malpractice litigation alleging misdiagnosis of aortic dissection. Sometimes, the NP or PA evaluated the patient but did not order chest CT angiography (CTA). The focus of the litigation centers on whether the outcome would have been any different if the EP had evaluated the patient — specifically, whether the EP would have suspected aortic dissection.
Since providers cannot order a CTA on everyone with a chest pain complaint, the NP’s or PA’s documentation of the patient history will be scrutinized by the plaintiff’s experts to see if there was reason to suspect aortic dissection. If it is clear a reasonable EP would have concluded there was no reason to suspect aortic dissection or a cardiac condition (e.g., STEMI or non-STEMI) at the time of the visit, the case is more defensible. “It helps if the PA’s or NP’s documentation is thorough, detailed, and supports the decision to discharge from the ED,” says Kanik, a partner in the Atlanta office of Hall Booth Smith.
Good documentation addresses the patient’s complaints, the physical exam, any tests ordered, and shows there was good communication between the NP or PA and the EP. A clear picture with all the relevant facts allows the EP to truthfully testify that even if they had evaluated the patient, the EP would not have done anything differently.
On the other hand, it is problematic for everyone if the NP or PA conducted an incomplete evaluation or clearly missed concerning signs.
• Did the EP sign off on the chart with a boilerplate statement? Generic statements such as, “I reviewed the PA’s note and agree with the PA’s findings and plan” are common in ED charts. Time pressure is one reason; the chart is considered incomplete until the supervising EP signs off.
“Often, EPs sign off on the decision to admit or discharge a patient after simply talking to the NP or PA,” Kanik observes.
Yet if something goes wrong, the EP is in a difficult position, legally. The EP has to admit they signed the chart without reviewing all the medical decision-making because there was no time.
It is not a problem if nothing goes wrong, or when the EP really does agree with everything the NP or PA documented.
“Boilerplate statements only become problematic when the physician later disagrees with what is charted,” Kanik explains.
• Did the NP or PA ever consult with the EP during the ED visit? Some supervising EPs try to escape liability for a bad outcome by stating, “No one ever told me about the patient.” That may be the case.
“But that looks like the EP was not taking responsibility over someone they should have been supervising,” Kanik says.
At deposition, some EPs testify that if only the NP or PA had asked for help, then he or she would have evaluated the patient. The EPs claim it was not their fault if the NP or PA did not let them know what was going on.
“That may sound like a good argument on its face. The problem is, while most jurors don’t mind being seen by someone other than a doctor, they do want to think that the doctor, in some way, is involved,” Kanik notes.
State laws support this view. Generally, NPs and PAs are restricted from practicing in the ED without a supervising EP. Thus, the plaintiff attorney can ask the EP: “If you didn’t know anything about this patient, how are you fulfilling your state duty in supervising that NP or PA?”
“Jurors will wonder: ‘Are you telling me you were there to be consulted, but they didn’t consult you? Well, shouldn’t they have come to you? And what have you done about it after the fact?’” Kanik says.
If a patient died of a cardiac-related emergency shortly after a NP/PA discharge, it is hard for jurors to let the supervising EP off the hook. It does not matter if the ED was busy that day, or if there was poor communication between the NP and the EP. Jurors will not tolerate excuses.
“For something as serious as chest pain, which can be fatal, most people would like the doctor to be involved,” Kanik says.
• What did relevant policies say regarding EP supervision of NPs and PAs? Some policies indicate once the decision is made to admit, the supervising EP must see the patient. Other policies say the EP just has to agree with the decision to admit, and does not necessarily have to examine the patient. Either way, says Kanik, hard-and-fast rules can complicate litigation. “ED policies should be clear they are only recommendations, and that clinical judgment is always paramount,” Kanik offers.
If policies specify certain conditions (e.g., chest pain) always must be subjected to an EP evaluation, that is problematic, too. “Then you are underusing the NPs and PAs, and they are not developing clinical judgment,” Kanik says.
Cases that appear low-acuity suddenly can evolve into a life-threatening emergency. The NP or PA has to be able to spot those cases and know when to involve the EP. Jurors will expect it, regardless of how crowded the ED was.
“You would like to think people are understanding that the healthcare system is overburdened,” Kanik says. “But let’s face it: People do care if the failure of physician involvement was the reason for the bad outcome.”
In Kanik’s experience, poor communication is the single issue that resounds the most with jurors in ED lawsuits. No juror wants to hear the EP and NP/PA did not communicate well, and a patient paid the price. If the chart reflects the supervising EP and the NP/PA discussed the patient, the case is going to be more defensible.
“By talking to each other, and documenting that in the chart, the better the situation is going to be two years down the line when you have to defend the care provided,” Kanik says.
If an emergency physician never evaluates such a patient, leaving the care solely to a physician assistant or a nurse practitioner, this could lay the foundation for litigation.
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