Article originally published in the ED LEGAL LETTER / November 2019, vol. 30, No. 11.
Only 18% of emergency medicine (EM) residency programs offer more than four hours a year of medical malpractice/risk management education, according to the authors of a recent study.
“The lack of significant dedicated time devoted to malpractice/risk management was surprising, given its importance in day-to-day clinical practice,” says Jason J. Lewis, MD, the study’s lead author and an emergency physician (EP) at Beth Israel Deaconess Medical Center in Boston.
Researchers surveyed 91 program directors on methods used to teach residents about diagnostic errors, quality assurance (QA), and malpractice/ risk management. “There has been an increased focus on preventing diagnostic error. In order to decrease this type of error, it is imperative that we start by educating our trainees,” Lewis says. Researchers recommended EM programs implement a more formalized curricular structure and use a multimodal approach with didactic lectures, actual cases reviewed by malpractice attorneys, and simulation cases. “This may prove beneficial in residency education and for patient safety and quality initiatives,” Lewis predicts.
Malpractice litigation takes a severe toll on EP defendants, regardless of the outcome. “Once a med/mal suit is triggered, regardless of outcome or who ‘wins,’ the process itself is long, tiresome, and stressful,” says Bryan E. Baskin, DO, FACEP, associate quality improvement officer at the Cleveland Clinic’s Emergency Services Institute and an attending EP at Cleveland Clinic Fairview Hospital.
The role of patient satisfaction is a common blind spot. “Many suits are driven out of anger and dissatisfaction, more than actual outcomes,” Baskin observes.
In considering their legal exposure, ED providers sometimes focus narrowly on complaints viewed as high risk, such as chest pain. In reality, says Baskin, “malpractice risk exists on every case in EM. At times, a fast-track case such as a laceration can be just as risky as the chest pain patient, though the indemnity is different.”
"... Malpractice risk exists on every case in EM. At times, a fast-track case such as a laceration can be just as risky as the chest pain patient, though the indemnity is different.”
For example, wounds and fractures account for a significant percentage of lawsuits against EPs. “Another example would be back pain, which has lower volume but a high indemnity in EM malpractice due to poor outcomes,” Baskin offers.
A good understanding of the medical malpractice process is important, since it clarifies why litigation occurs in the first place. EPs can gain this kind of expertise by seeking out mentors who specialize in risk management, or by participating in formal presentations, Baskin says.
Knowing how documentation affects things is particularly important. “Often, key points of EM charts are lacking, simply because providers were not aware of why the documentation is warranted,” Baskin explains.
For instance, some EPs do not understand the malpractice implications of documenting risk factors in chest pain patients. The same is true for why it is important to chart a thorough neurological examination in someone presenting with headache.
“Educating providers on important aspects of general EM charts, as well as certain aspects of high-risk EM chief complaints, are equally important to quality patient outcomes as well as risk mitigation,” Baskin adds.
Identifying and discussing high risk areas for malpractice is important for the entire ED team — nurses, physicians, physician assistants, nurse practitioners, or any other professional working with the patient, says Mark F. Olivier, MD, FACEP, FAAFP, risk manager medical advisor at Lafayette, LA-based Schumacher Clinical Partners.
The frequency of “failure to diagnose” allegations in ED closed claims signals the need for some education on common cognitive errors, such as premature closure and anchoring. “Education of providers would make them aware of these potential pitfalls, and thereby prevent them in the future,” Olivier says.
Communication breakdowns, such as ineffective handoffs, also are common in ED malpractice lawsuits. “Teaching effective provider communication is a [technique] to decrease the possibility of malpractice claims,” Olivier says.
It is important for everyone to know why lawsuits still can occur even if the ED patient received excellent care. Often, it is because the ED chart does not make it clear enough that the standard of care was met.
“Appropriate documentation may be the deciding factor whether a plaintiff attorney takes a claim or not,” Olivier observes. There are a few items that, if well-documented, could make successful litigation against the EP less likely:
- Documentation that addresses any significant historical and/or physical exam discrepancies between providers. “Not addressing an issue documented by a nurse, which later turns out to be a serious medical problem, could be difficult to defend,” Olivier cautions.For example, an adolescent complains of abdominal pain and testicular pain to the nurse. However, the patient only mentions the abdominal pain when talking to the EP.“If only the abdominal pain is addressed, without a genital examination, and the patient ends up with testicular torsion, this could be a problem,” Olivier warns. Likewise, ED providers sometimes overlook pertinent EMS findings. “This could provide ammunition for the plaintiff attorney,” Olivier adds.
- Evidence that appropriate discharge instructions were given to the patient, summarizing the diagnosis, treatment plan, and follow-up process. Also important, says Olivier: “Provide enough information to allow the patient to recognize a problem if their condition worsens, and seek care promptly.”
- A reasonable explanation for why a patient is dispositioned with an abnormal vital sign. Olivier offers this example: A patient with an infection believed to be benign and appropriate for outpatient treatment has a persistent minor tachycardia at the time of discharge, which cannot be explained by fever.In this kind of case, Olivier says the EP should re-evaluate the patient to make sure a more serious infection is not overlooked. Also, if records show the patient had tachycardia previously, this should be documented at the time of discharge.
- Evidence that a discussion took place with the patient about any incidental findings noted on imaging unrelated to the patient’s clinical presentation. “The discussion should be documented in the chart, and recommendations documented in the discharge instructions,” Olivier says.
- A summary of any conversations with consultants or admitting providers, including what was discussed and the management plan. “Documenting time of consultation is especially important when managing time-dependent illnesses, which the plaintiff attorney may allege was not managed in a timely fashion,” Olivier explains.
- Medical decision-making that includes an adequate differential diagnosis for the patient’s presentation and how the EP arrived at the final clinical impression.
- Documentation of reassessments after treatment, showing how the patient responded. Evidence of improvement is especially important in a patient discharged home after a prolonged ED stay. If, for example, a patient with intractable vomiting and abdominal pain is given antiemetics and hydrated over several hours, improvement in vital signs should be charted.“Serial abdominal examinations should show no evidence of development of a surgical abdomen during this treatment period,” says Olivier, noting that an oral hydration trial should be considered to show improvement. “You want to try and make a record of the patient’s improving condition over time.”