ED Legal Letter – November 1, 2018
November 1, 2018
View Issues
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Determining the Reliability of a Triage Tool in Med/Mal Litigation
Many ED malpractice claims allege a patient was mistriaged. But what if the plaintiff attorney takes things a step further and claims that the tool used to triage patients was unreliable?
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Plaintiffs Prevailing in Incidental Findings Claims
Experts recommend EDs should address how to prevent an important incidental finding from falling through the cracks in the communications between the ED and radiology. One approach is to ensure that all imaging reports, consultations, and other pertinent information are emailed to the patient’s primary care physician. This could serve as an opportunity to catch something that might otherwise be missed, thereby reducing the risk of harm to the patient and the risk of litigation.
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Outcome of Discharged Patients a ‘Concerning Blind Spot’
Did a terrible outcome occur minutes, hours, or days after an ED visit? The timing complicates the defense of a subsequent malpractice claim for multiple reasons.
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Legal Protections of AMA Form Only Go So Far if ED Patient Refuses Admission
The use of a properly executed AMA/informed refusal form can create protection from future liability by clearly demonstrating that the patient understands the EP’s medical decision-making, creating the affirmative defense of “assumption of risk,” and establishing a record of evidence of the patient’s refusal of care.
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Suicide Risk in ED: Thorough Assessment Derails Litigation
A key component of evaluation of a psychiatric patient, especially in the ED, is an assessment of danger to self and others.
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Did ED Fail to Give Appropriate Discharge Instructions?
Contributory negligence, in those jurisdictions that recognize it, can be difficult to demonstrate. This is because the patient’s negligence must occur at or about the same time as the physician’s alleged negligence. The difficulty of arguing that the patient is at fault for failing to tell the EP an important piece of history is another obstacle.
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Many EPs Rely on Observation to Mitigate Legal Risks
Many EPs routinely place patients in observation if those patients do not meet inpatient admission criteria but EPs believe the patients are at risk. This is true even if the perceived risk is just 1%, according to a recent study.