INTRODUCTION

Despite being on the mind of nearly every emergency medicine (EM) provider, and impacting how we deliver care, the legal system and how it applies to the emergency department (ED) remains largely a black box for most physicians, fraught with hearsay, folklore, and anecdote--some of which carries weight, and some easily refuted. With that in mind, below is a review of some recent literature as it pertains to the medicolegal practice of EM, with the author’s take.

The goal of this review is to provide perspective and lay some groundwork on which EM providers can expand in their own practice. This is by no means a complete resource. Moreover, the author is neither a lawyer nor in any way a legal expert, and all commentary represents his personal opinions. When in doubt, we recommend that you consult your hospital’s policies and internal risk services.

To believe that only incompetent physicians who provide suboptimal care will get sued is ill-informed. I encourage those interested in the subject not only to research the topic independently (see suggested reading below), but to regularly revisit the data. There are several highly informative free resources available which review real malpractice cases, providing commentary on primary court documents. The more one learns about this process, the clearer it becomes that this is an incredibly nuanced subject with very few black-and-white answers.

DISCUSSION

WHAT DOES THE PROCESS OF BEING SUED ACTUALLY LOOK LIKE? [1]

1. Patient receives care

2. The medical record reflects that you were associated with the care provided in some respect

3. The patient has a bad outcome

   • Helping ensure a good outcome can be protective

4. The patient, or their representative, believe this outcome was due to poor care that they received and decide to sue

   • Having a good relationship with a patient and helping them feel you had their best interests at heart can be protective

5. Patient approaches attorney who requests medical records

6. Medical records are reviewed by an “expert” consultant for the attorney

   • A fully documented record can at this point often forestall a suit

7. If the attorney feels there is a good chance of a favorable outcome, a claim is made

   • A claim is a communication to the defendant (physician, hospital, etc.) reviewing the case and their request (e.g., we want $100k because you botched a breast augmentation and now the patient is permanently disfigured)

   • How often are frivolous (one in which they likely knew there was no evidence of malpractice, but they pursued a lawsuit anyway) charges filed by a lawyer? Based on recent study, 3% of claims had no demonstrable injury associated with alleged negligence and 37% had no associated error. Thankfully, most of these cases were denied compensation.

     1. Some states have included preliminary state review boards that review malpractice cases to ensure they have merit prior to allowing them to move forward with litigation.

        1. MA has a medical malpractice tribunal made up of a physician, a judge, and an attorney. They are charged with determining “if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result”. To date, they have denied 16% of cases. However, plaintiffs can put up $6k bond and still take it to court.

8. The defendant then reviews the claim (often in association with the malpractice insurance company). They weigh the merits of the claim, likelihood of winning case, cost of litigation, then decide whether to take the claim to trial, or to negotiate a settlement. Depending on the physician’s contract, they may or may not have a say in whether to settle a claim or not. If they deny the claim, then the plaintiff can either drop the case, or move forward to litigation.

9. All named parties are notified that they are named, and what their alleged role was (i.e., “served”)

   • At this point, the physician usually notifies risk management and their malpractice company, both of which often do an internal investigation, if not already done. They also assist the physician in hiring an attorney.

10. Case then moves to discovery period, which last months-years, and both parties acquire evidence. (medical records, hospital policies, witness statements, etc)

    • A significant part of this is each side having expert witnesses review all available evidence, then providing their thoughts in a written statement. Each party has the right to review the other party’s opinion.

      1. Attorneys do not have to disclose an expert opinion that “goes against” their case. This often results in attorneys “shopping around” with experts until they find one who gives a favorable opinion.

11. After discovery, the two parties meet once again to see if they can arrive at an agreement, or move to trial. Again, the physician may or may not have a choice in settling, depending on their malpractice contract

12. At trial, plaintiff presents all of their evidence to the judge and (often) jury. The defense then cross examines and presents their own evidence. The jury deliberates and assigns verdict and any compensation.

    • Parties can settle at any point in the trial

     

A FEW DOCUMENTATION LESSONS AND EXAMPLES [2]

INFORMED CONSENT

• Make sure you actually do an informed consent form, and make sure it is saved

  • Case example--Medina, NJ, 2005. Patient had a C-spine fusion at multiple levels, then had persistent pain. She sued, saying she did not consent to having multiple levels done. The physician couldn’t find the consent form. $425 k settlement resulted.

• Make sure the consent says precisely what you’re going to do

  • Case example: Brown, IL, 2014. Patient consented to “central venous catheter” but had a Swan-Ganz placed instead. Had a perforation. Said they did not consent to this catheter. Hospital settled out of court, physician brought it to court and lost $1 million.

• Make sure the informed consent is time stamped appropriately

  • Case example: Alaima, NY, 2010. Patient had cosmetic breast surgery and had a poor cosmetic outcome. Surgeon argued that patient consented to this as a possible outcome. Patient alleged that she only signed that on the way into surgery. Surgeon and multiple witnesses testified that this is not their protocol and would not have been the case. However, the consent did not have a time stamp on it to prove this. $3.5 million dollar loss.

AGAINST MEDICAL ADVICE (AMA) DOCUMENTATION

When a patient leaves AMA, document your discussion in your note. Just having a signed form is not sufficient. Also make sure to include in documentation that you told the patient that they are welcome to return at any point. Remember, this is how you will appear to a jury--lazy and indifferent, or caring and dedicated.

• Case example: Parker, FL, 2000. Patient presented to ED for headache. Physician had concern for subarachnoid hemorrhage but patient decided to go home AMA, died several days later. Only the AMA form was in the chart. The family sued with a $9 million award. The big weakness noted in the defendants case was the lack of supporting documentation to prove that doctors did their due diligence in AMA discussion.

• Case example: Tracy, IL, 2005. Patient presented to ED with chest pain. The work up was concerning, but the patient left AMA with cardiology follow up, and unfortunately died before the appointment. No AMA discussion was documented in chart. $5.4 million verdict by jury, 50% responsibility placed on patient, 50% on ED physician ($2.7 million)

DISCHARGE INSTRUCTIONS/REFERRALS

 Always document your diagnostic concerns, follow up plan, and that return precautions were provided. Verbal instruction is not sufficient, because there is no proof that it happened.

• Case example: Ruiz, NY, 2007. Admitted for nephrolithiasis, got stented and discharged with plan for stent removal. Patient never followed up, returned with severe pyelo, had nephrectomy. Claimed she didn’t know and wasn’t told that the stent needed to be removed. Despite doctor and staff testifying that they verbally told her this, it was not written down anywhere. Patient was awarded $1 million.

• Case example: Estate, NE, 2010. Woman with dyspnea presents to PCP, found to have an elevated D-dimer. Was discharged from office, went home and died of massive PE. The PCP alleged that she told patient to go to the ED, but this was not documented anywhere. Family was awarded $2 million.

Make sure your referral is to the right person, with the right expertise, in the right timeframe.

• Case example: Hooten, FL, 2018. Baby with retinopathy of prematurity. On d/c, was referred to ophthalmology, however the ophthalmologist who received referral didn’t have expertise in this, and told the parent to find someone else. Mother wasn’t able to find follow up for a month. At that point, child was blind. Family awarded $9.25 million.

CONFLICTING INFORMATION

 Triage notes/nurse notes may disagree with the MD note. Lesson: if your history/exam disagrees with a previous note from that visit, you should address this in the chart.

• Case example: Anonymous plaintiff, MA, 2006. Patient presented with chest pain. ED physician admitted to the floor for observation, where the patient deteriorated and died shortly after due to spontaneous chest wall hemorrhage. Triage RN had noted patient’s skin was “cool, moist, and mottled” but ED physician argued patient looked well when he saw the patient. The chart did not reflect this though. The case settled for $800k.

• From Jurisprudence, a major legal reference text: “The value of recognizing the difference between a brief note of a busy physician and the more leisurely and fuller account of a nurse working an 8-hour shift, in virtual constant attendance on a patient, should be readily apparent. Cast in the proper light, the nurses’ notes may well be given more credence by a jury when confronted with a conflict reflecting significantly on either the client’s injury or a question of liability(3)”

In other words, lawyers will try to argue that the nurse’s note supercedes the physician’s note, if it benefits their case. Very strongly address nursing notes, either in documentation or testing choices.

 
CONSULTATIONS

• Always document who you spoke with and what was said in a consultation

  • “I have reviewed the patient’s history, physical exam, and test information with Dr. Consultant who recommends…”

• If a consultant only gives “general advice” over the phone, a physician-patient relationship was not made. However, if that consultant reviews test results, and advice specific to diagnosis and treatment are made, then there was a physician-patient relationship, even if only done over the phone. [4]

  • Case example: Anonymous, NY, 2001. Pt presented to ED with headache. The resident alleged they called a consultant, who did not recommend subarachnoid hemorrhage workup. The patient was discharged and sadly died of subarachnoid hemorrhage. The consultant alleged they did not recall any such consult, and there was no proof of said consult in record. Jury believed one party was lying, and lack of documentation was evidence of a cover up. $44 million was awarded to family.

• Numerous cases of he said/she said between consultants and primary teams

• Note: make clear to the consultant that this is a consult. If you are curbsiding, this is not an official consult, and you should not document it.

AUTHOR: Joseph Moran-Guiati is a current fourth year emergency medicine resident at Brown University/Rhode Island Hospital.

FACULTY REVIEWER: Gita Pensa, MD is an Associate Professor and Clinician Educator with the Brown University Emergency Medicine Residency

Suggested Further Reading

●      Bookman, K., & Zane, R. D. (2020). Surviving a Medical Malpractice Lawsuit. Emergency Medicine Clinics of North America, 38(2), 539–548. https://doi.org/10.1016/j.emc.2020.01.006

●      Jena, A. B., Seabury, S., Lakdawalla, D., & Chandra, A. (2011). Malpractice Risk According to Physician Specialty. New England Journal of Medicine, 365(7), 629–636. https://doi.org/10.1056/nejmsa1012370

●      Gurley, K. L., Grossman, S. A., Janes, M., Yu‐Moe, C. W., Song, E., Tibbles, C. D., … Rosen, C. L. (2018). Comparison of Emergency Medicine Malpractice Cases Involving Residents to Nonresident Cases. Academic Emergency Medicine, 25(9), 980–986. https://doi.org/10.1111/acem.13430

●      Kachalia A, Gandhi TK, Puopolo AL, Yoon C, Thomas EJ, Griffey R, Brennan TA, Studdert DM. Missed and delayed diagnoses in the emergency department: a study of closed malpractice claims from 4 liability insurers. Ann Emerg Med. 2007 Feb;49(2):196-205. doi: 10.1016/j.annemergmed.2006.06.035. Epub 2006 Sep 25. PMID: 16997424.

●      Mattu, A. (2020). Risk Management in Emergency Medicine. Emergency Medicine Clinics of North America, 38(2), xiii–xiv. https://doi.org/10.1016/j.emc.2020.03.002

●      Cheung D., Kelly J., Beqch C., et al: Improving handoffs in the emergency department. Ann Emerg Med 2010; 55: pp. 171-180

●      Facep, M. J. A. G. (2012). Emergency Medicine: Clinical Essentials (Expert Consult - Online and Print) (2nd ed.). Medicolegal Issues in Emergency Medicine Philadelphia, PA: Saunders.

●      Ferguson, B., Geralds, J., Petrey, J., & Huecker, M. (2018). Malpractice in Emergency Medicine—A Review of Risk and Mitigation Practices for the Emergency Medicine Provider. The Journal of Emergency Medicine, 55(5), 659–665. https://doi.org/10.1016/j.jemermed.2018.06.035

References

1. Bookman, K., & Zane, R. D. (2020). Surviving a Medical Malpractice Lawsuit. Emergency Medicine Clinics of North America, 38(2), 539–548. https://doi.org/10.1016/j.emc.2020.01.006

2. Lindor, R. A. (2020, October). Gotcha! The Medical Chart: Anticipating the Lawyer’s Review. Conference Presentation presented at the ACEP 2020, Dallas, TX. Retrieved from https://acep20.acep.org/live/library/gotcha_the_medical_chart_anticipating_the_lawyers_review

3. Lawyers Co-operative Publishing Company & Bancroft-Whitney Company. (1974). American jurisprudence proof of facts, 2d series. Zaltbommel, Netherlands: Van Haren Publishing.

4. Moore JJ, Matlock AG. Shared Liability? Consultants, Pharmacists, and the Emergency Physician: Legal Cases and Caveats. J Emerg Med 2014;46(5):612-616.