Dodging the Bullet

8/11/2019 Dodging the Bullet

1/12

Dodging the BulletA review and discussion of several close clinical encounters

By Larry Mellick, MD, MS, FAAP, FACEP, Editor-in-Chief,Professor of Emergency Medicine and Pediatrics, Department of

Emergency Medicine, Medical College of Georgia, Augusta

In this article, we present a series of actual clinical scenarios that couldhave turned out differently if the wrong management decision hadbeen made. There are two goals of this article. The first is to glean

from each of the reported cases important points of educational value andlearning. The second is to point out that clinical misadventures are often asingle judgment call away from a potential tragedy. Every day, emergencymedicine physicians find themselves in similar situations. Unfortunately,some disease presentations are not classic textbook descriptions, andatypical clinical presentations are common. Besides complex and atypi-cal presentations, the emergency department is a relatively uncontrolled

environment. We work under conditions that are cognitively demanding.Emergency health care providers experience frequent interruptions, carefor a wide range of patients simultaneously, and experience surges in mul-tiple patient care responsibilities.1,2,3The decision-making processes canbe complicated, tenuous, and treacherous. The odds are not necessarilyin our favor. Consequently, for every bullet successfully dodged, we arereminded that it may be just a matter of time before one finds its mark.If and when that happens, we can only hope that harm is minimized, ourdocumentation supports our decision-making, and that the patient and hisor her family are understanding and forgiving.

Blood Loss and the Pediatric Patient

A 6-year-old girl who lived in a rural area was playing outside with astray dog recently befriended by the family. When the childs mother heardher screaming, she ran out of the house to find her daughter covered inblood and the dog standing quietly at her side. The little girl had sustaineda major scalping laceration with a large anterior flap that exposed the skullbone. Emergency medical services responded to the emergency call and, atthe mothers insistence, a decision was made to transport the young girlto the childrens hospital emergency department rather than their local

NOW AVAILABLE ONLINE! Go to www.ahcmedia.com/online.html.

Call (800) 688-2421 for details.

Diagnostic Test NotOrdered?Protect Yourself Legally By

Explaining Why . . . . . . . 102

Unexpected Results of Need-less Tests Can Cause LegalProblems . . . . . . . . . . . . . 103

Why Did You Order UnnecessaryTest? Protocol Is One Defense

. . . . . . . . . . . . . . . . . . . . . . 104

Quality Measure BringsAdditional Legal Risks for ED

. . . . . . . . . . . . . . . . . . . . . . 105

Are Personnel Files, QI, orIncident Reports Discoverable?

. . . . . . . . . . . . . . . . . . . . . . 106

Financial Disclosure:The following individualsdisclose that they have no consultant, stockholder,speakers bureau, research, or other financialrelationships with companies having ties to thisfield of study: Larry Mellick, MD, MS, FAAP, FACEP

(Editor-in-Chief), Professor of Emergency Medicineand Pediatrics, Department of Emergency Medicine,Medical College of Georgia, Augusta; N. BethDorsey, Esq. (Writer); Timothy A. Litzenburg, Esq.(Writer); Kay Ball RN, PhD, CNOR, FAAN, Consultant/Educator, K&D Medical Inc., Lewis Center, OH (NursePlanner); Stacey Kusterbeck (Contributing Editor);Shelly Morrow Mark (Executive Editor); and LeslieHamlin (Managing Editor).

September 2011Vol. 22 No. 9 Pages 97-108


2/12

98 ED LEGAL LETTER / September 2011

emergency department. The prehospital providersdescribed what appeared to be a large amount ofblood loss at the scene. The gauze that covered thehuge scalp wound was soaked with blood, and thewound continued to ooze blood from small arterialbleeders. (SeeFigure 1.)

The initial vital signs were blood pressure103/57, heart rate 142, and the pulse oximeterreading was 100%. One 20-gauge intravenouscatheter had been successfully placed in the rightwrist. Despite multiple attempts, a second intra-venous line could not be obtained. Pulse pres-sure, heart rate, capillary refill, and mental statuswere the parameters available for assessment ofthe patients hemodynamic stability. Early in thepatients care, fentanyl was suggested for paincontrol. The patient was already quiet and, while

ED Legal Letter, ISSN 1087-7347, is published monthly by AHC Media, 3525Piedmont Road N.E., Bldg. 6, Suite 400, Atlanta, GA 30305. Periodicals Postage Paid

at Atlanta, GA 30304 and at additional mailing offices.

POSTMASTER: Send address changes to ED Legal

Letter, P.O. Box 105109, Atlanta, GA 30348.Subscriber Information: Customer Service: (800) 688-2421. CustomerService E-Mail Address: [email protected]. Editorial E-MailAddress: [email protected]. World Wide Web: http://www.ahc-media.com. Subscription Prices: United States: $499 per year. Add $17.95for shipping & handling. Multiple Copies: Discounts are available for groupsubscriptions, multiple copies, site-licenses or electronic distribution. For pric-ing information, call Tria Kreutzer at 404-262-5482. Canada: $529 per yearplus GST. Elsewhere: $529 per year. Back issues: $83. Missing issues will befulfilled by customer service free of charge when contacted within one monthof the missing issues date. GST Registration Number: R128870672.

AHC Media is accredited by the Accreditation Council for Continuing MedicalEducation to provide continuing medical education for physicians.

AHC Media designates this enduring material for a maximum of 18AMA PRA Category 1 Credits. Physicians should only claim credit commensurate

with the extent of their participation in the activity.Approved by the American College of Emergency Physicians for 18 hours of ACEPCategory 1 credit.

AHC Media is accredited as a provider of continuing nursing education by theAmerican Nurses Credentialing Centers Commission on Accreditation.

This activity has been approved for 15 nursing contact hours using a 60-minutecontact hour.

Provider approved by the California Board of Registered Nursing, Provider #14749,for 15 Contact Hours.

This activity is intended for emergency physicians and nurses. It is in effect for 36months from the date of the publication.

Opinions expressed are not necessarily those of this publication, the executiveeditor, or the editorial board. Mention of products or services does not constituteendorsement. Clinical, legal, tax, and other comments are offered for general guid-ance only; professional counsel should be sought in specific situations.

Vice President / Group Publisher: Donald R. Johnston

Executive Editor: Shelly Morrow MarkManaging Editor: Leslie HamlinEditor-in-Chief: Larry B. Mellick, MD, MS, FAAP, FACEPContributing Editors: Robert Bitterman, MD, JD, FACEP, and Stacey Kusterbeck.

Copyright 2011 by AHC Media. All rights reserved. No part of this newsletter maybe reproduced in any form or incorporated into any information-retrieval systemwithout the written permission of the copyright owner.

Questions & Comments

Please contact Leslie Hamlin, Managing

Editor, at [email protected].

Figure 1: Blood, blood-soaked gauze,and elastic wraps

responsive to the pain from attempted needle

sticks, already seemed a little too sedated. Sincemental status was one of the few parameters ini-tially available for monitoring the patients circula-tory status, we elected not to treat with fentanylimmediately. The normal pulse pressure is 30 to40 and narrows with increased systemic vascularresistance. Despite the large amount of blood lost,her pulse pressure had not narrowed. Since boneinjury and skull penetration are not uncommonfollowing dog bites (which can exert a force morethan 400 pounds per square inch), a computerizedtomography (CT) scan of the head was obtained.

The CT scan of head was normal.The plastic surgery team was consulted, and they

evaluated the patient in the emergency department.Because the child had something to drink at 10:00a.m., the surgeons did not want to take the child tothe operating room until 4 p.m. Furthermore, theconsultants asked that the planned blood transfusionbe held. Meanwhile, the ongoing blood loss from thescalp wound was proving resistant to our attempts athemostasis. Despite pressure dressings, various hemo-static agents, and strategically placed staples, the ooz-ing continued. The ongoing bleeding hidden under

large amounts of gauze and pressure dressings wasalmost clandestine. Only when the dressings wereremoved to assess hemostasis did the continued bloodloss become apparent. A repeat hemoglobin measure-ment demonstrated a dramatic drop from 12.0 to8.2 g/dL. Because of the drop in hemoglobin and theplanned delay in surgery, a transfusion of packed redblood cells was finally started. Later that afternoon,the patientslarge scalp wound was repaired in theoperating room.


3/12

September 2011 / ED LEGAL LETTER

99

Learning Points

Never completely trust your own estimationsof pediatric blood loss. Respect the pediatric patients ability to main-

tain normal vital signs despite major blood loss. Continually track and reassess the bleeding

pediatric patients physiologic status. Err on the side of early fluid and blood replace-

ment. Be very mistrustful (even paranoid) of bleeding

scalp lacerations. When a child last ate or drank should be a

minimal consideration when it comes to timely

management of his or her emergency condition.

A Fish Bone StoryA 17-year-old girl presented to the emergency

department complaining that she had a fishbone stuck in her throat. She described an areaof irritation in her right posterior pharynx. Theinitial examination with a tongue blade dem-onstrated no evidence of a fish bone. The entirearea was viewed with a nasopharyngeal scope,and no evidence of a foreign body was notedat her vocal cords or valleculae. A radiograph

of her neck demonstrated no foreign body. Thesearch for a foreign body was nearly endingwhen the patient pointed out a more specificarea of concern in her tonsil. (See Figure 2.)Further examination demonstrated the nubbinof an object that was slightly protruding fromthe tonsil. Using forceps from a suture kit, theemergency medicine resident extracted a fishbone that had been impaled into the tonsil. (SeeFigure 3.)

Discussion

Blood loss in children can be easily underesti-mated. Furthermore, the total blood volume ofa child is considerably less than that of an adult.Blood loss that might appear small by adultstandards may very well be life-threatening for achild. And, as was described in this case, bloodloss at the scene that appears large is more likelya critical loss of blood for a child. Additionally,despite massive blood loss, physiologic adjust-ments in systemic vascular resistance occur thatmaintain the childs vital signs at a near normalstate. Once these compensatory mechanisms fail,

sudden deterioration and death can occur. Ourpatient initially demonstrated a normal capillaryrefill, normal pulse pressure, and a normal skincolor. Urine output was not immediately measuredbecause urine standing in the bladder is of no clini-cal value. Only after a Foley catheter is placed, thebladder is emptied, and tracking is started is urineoutput of potential value. The only notable param-eter on this child was the change in mental status.Nevertheless, the child demonstrated laboratoryevidence of a major, life-threatening blood loss.

Delaying emergency, and possibly life-saving,

care because a patient recently ate or drank isnot well supported in the literature. At least forprocedural sedation, there is sufficient evidenceand expert consensus that the risk is small andthe management of the emergency condition cantake priority.4,5,6Even guidelines published by theAmerican Society of Anesthesiologists indicate thatin emergency situations, recent oral intake is nota sufficient reason to delay surgery, but the targetlevel of sedation can be modified.7

Figure 2: Small area of irritation in thepatients right pharynx

Figure 3: Fish bone removed from theteenagers right tonsil


4/12


Discussion

Emergency physicians use a number of tools tosearch for pharyngeal foreign bodies. But whathappens when these investigations fail to demon-strate a fish bone? Usually, the assumption is madethat the persisting pain is secondary to an abrasioncaused by a sharp foreign body passing through thepharynx. This case demonstrates that an impaledforeign body no longer visible can also be the causeof irritation. There are numerous case reports thatdescribe the consequences of chronically impaledfish bones, and confirm that the associated morbid-ity to the patient can be severe.8,9,10

Learning Point If one cannot actually see the fish bone, it may

be impaled into the tissues. Be careful about attrib-uting persistent pain to a scratched pharynx.

Chest Contusion ConundrumA 52-year-old man presented to the emergency

department complaining of right-sided chest painand bruised ribs, as well as recent hemoptysis.(See Figure 4.) During the previous week, he lost hisbalance and fell against a coffee table. Other than

some chest discomfort with inspiration, he deniedany other complaints. In fact, most of his discomfortoccurred when he was lying flat in bed. His pastmedical history was significant for diabetes mellitus,hypertension, and a lower extremity amputationbelow the knee several months prior. He deniedany lower extremity swelling or pain. His initialvital signs were pulse oximetry 99%, blood pres-sure 116/66, heart rate 106, and respiratory rate 16.Subsequent vital signs showed a heart rate of 93,

Figure 4: Abnormal chest radiographof the patient

101, and 97. Pulse oximetry readings remained at99% and 97%. His chest radiograph demonstratedan area of haziness and a plate-like atelectasis thatwas considered consistent with an infiltrate or evena pulmonary contusion. (See Figure 4.)

The possibility of a pulmonary embolus was con-sidered. However, the radiology findings were notclassic ones for pulmonary embolus. Additionally,on repeated questioning, the patient denied anyshortness of breath and stated that he felt fine.Preparations were begun to discharge the patienthome with a prescription for azithromycin to treatpresumptive pneumonia. At the last minute, how-ever, uneasiness with the decision resulted in a phy-sician ordering a CT angiogram (CTA) of the chest.Besides emphysematous changes in the lungs andperipheral airspace opacities in the bilateral lowerlobes, the CTA demonstrated bilateral pulmonaryemboli with significant clot burden and deep veinthrombosis in the bilateral lower extremities.

DiscussionThis patient did have several clinical findings

consistent with a pulmonary embolus. The historyof recent surgery was relevant, as was the pleuriticchest pain and hemoptysis. However, these samesigns and symptoms could also have been consis-tent with a diagnosis of pulmonary contusion orpneumonia. The confounding historical variablesthat almost caused an errant clinical decision werethe history of a recent fall and chest wall contu-sion. The lack of bruising to the chest seemed

inconsistent with a significant injury and was onefactor that caused the diagnosis to be reconsid-ered. The normal vital signs (except for the initialheart rate that demonstrated a tachycardia) andthe pulse oximetry of 99% were inconsistent withthe diagnosis of a pulmonary embolus, as was thepatients lack of symptoms. The patient repeatedlydenied shortness of breath and stated that he feltfine. The radiograph was abnormal but did notdemonstrate the classic pulmonary embolus radio-graph findings of Westermarks sign or Hamptonshump.

Learning Points Pulmonary emboli presentations can be subtle,

and vital signs (heart rate, pulse oximetry, etc.) arenot reliable indicators.

Always beware of the red herring in the his-tory that can distract you from the true diagnosis.

Be sure that you have sufficiently ruled out theworst possible scenario before accepting your finaldiagnosis.


5/12


101

Last RitesAn elderly woman in her late 80s was transferredfrom an outside hospital for management of a sub-arachnoid hemorrhage, as well as large amountsof free air discovered in her abdomen. After theneurosurgery team placed a pressure monitoringdevice in her head, the gastrointestinal surgeryservice was preparing to take her to the operatingroom. However, before any additional steps couldbe taken, the patients son called and stated thatthe family wanted to withdraw care. The son wasasked to fax a copy of the advanced directive to the

emergency department. According to the advanceddirective, the son clearly had decision-makingresponsibilities for his mother, but the patient hadalso clearly indicated that she wanted everythingpossible done to keep her alive. When the son calledback on a recorded line to restate his wishes, thecontradiction between his request and his mothersexplicit wishes was discussed. The patients sonacknowledged the disparity between his request andthe mothers wishes. And, in the same conversation,declined to come and be at his mothers bedsidewhen she died. We said our goodbyes last night

just before she was transported to MCG. He said.The obvious dilemma required careful manage-

ment. Risk management was consulted. Membersof the risk management department also communi-cated with the son. Additionally, an ethics commit-tee meeting was set up for 1 p.m. the same day. Theneurosurgeons and the gastrointestinal surgeonswere present for this meeting. The consensus wasthat the patients condition was indeed futile, and adecision was made to withdraw care, as requested

by the son. Because the family was of the Catholicfaith, a request had been made by the son for lastrites to be performed. Last rites were performed ear-lier in the day by a priest and the hospital chaplain.(See Figure 5.) The patient was given morphine forcomfort, and the endotracheal tube was removed.The ventilator was turned off, and the dying processcommenced. Over a period of several hours, thepatients blood pressure and oxygenation continuedto drop. Just after 5 p.m., the patient went into anagonal rhythm and was pronounced dead.

DiscussionFor the emergency medicine physician, similar

situations are not uncommon. Despite apparentfutility, the potential for violating the wishes andrights of a dying patient exists, and decision-mak-ing must be carefully navigated.11,12,13The AMACouncil on Ethical and Judicial Affairs recom-mends a process-based approach to addressing

futility, to include such actions as the following:14

1. Careful deliberation and resolution over whatconstitutes futile care;

2. Joint decision-making with physician andpatient or proxy;

3. Assistance of a consultant or patient repre-sentative; and

4. Use of an institutional committee (i.e., ethicscommittee).

Learning Point When ethical dilemmas develop during the care

of a patient, dont attempt to make these decisionsalone. Bring in your clinical consultants, risk man-agement representatives and, if necessary, convenean institutional committee to carefully deliberatethe issues.

SummaryDuring every clinical shift, emergency medicine

physicians find themselves making clinical decisionsthat have potential life or death consequences. Otherdecisions have the potential for serious patient mor-bidity. If an error in judgment occurs, harm may

come to the patient, and the health care provider isat risk for allegations of malpractice. Unfortunately,there are many clinical situations that are not clearcut or in which the patients own historical contribu-tions are flawed. In these situations, the emergencymedical care provider must rely on situationalawareness, cognitive dissonance, instinct, andexperience to help prevent clinical misadventures.Ordering additional studies or seeking input fromcolleagues or consultants may be the best decisions

Figure 5: Priest, chaplain, and nurseperfoming last rites on the patient


6/12


Diagnostic Test NotOrdered? Protect

Yourself Legally By

Explaining Why

Document your rationale

Editors Note: This is the first of a two-partseries on liability risks involving ordering of diag-nostic tests in the ED. This month, well cover thelegal ramifications of deciding not to order a test,the legal risks of unexpectedly abnormal results,how ED protocols can help an EPs defense, anda new quality measure that increases liability risksfor EPs. Next month, well report on possiblelawsuits for future cancers, strategies if patients

threaten to sue because a test wasnt ordered, andliability risks specific to pediatric patients.

More than half of emergency physicians (EPs)say the main reason they conduct the num-ber of diagnostic tests they do is fear of lawsuits,according to a recent survey of 1,768 EPs con-ducted by the American College of EmergencyPhysicians in March 2011.

However, EPs have a major false impres-sion that you need to order tests because this willsomehow be protective in a lawsuit, according to

Bruce Janiak, MD, professor of emergency medi-cine at Medical College of Georgia in Augusta. Idont think that is true at all.

In fact, ordering appropriate tests based on evi-dence-based medicine and good clinical judgmentis the best possible approach, says Janiak. Theevidence that supports extra testing is simply notthere, he adds. And there is evidence that refutesextra testing.

While ordering tests wont necessarily preventlawsuits, it will make them easier to defend, accord-ing to Robert I. Broida, MD, FACEP, chief operat-

ing officer at Physicians Specialty Ltd. in Canton,OH. It is extremely common for a plaintiffs attor-ney to allege that a particular test should have beenperformed that would have instantly made the diag-nosis and saved the patients life, he says.

This has tremendous jury appeal, especiallywhen it is a common test that the jurors mighthave experienced previously, says Broida. Doingthe test and having it be normal prevents this typeof unfounded assertion.

when significant uneasiness remains about onesclinical decision.

REFERENCES:1. Chisholm CD, Weaver CS, Whenmouth L, Giles B.

A task analysis of emergency physician activities in

academic and community settings. Ann Emerg Med.

2011;58(2):117-122.

2. Chisholm CD, Dornfeld AM, Nelson DR, et al. Work

interrupted: A comparison of workplace interruptions

in emergency departments and primary care offices. Ann

Emerg Med. 2001;38(2):146-151.

3. Chisholm CD, Collison EK, Nelson DR, et al. Emergency

department workplace interruptions: Are emergency

physicians interrupt-driven and multitasking? Acad

Emerg Med. 2000;7(11):1239-1243.

4. Molina JA, Lobo CA, Goh HK, et al. Review of stud-

ies and guidelines on fasting and procedural sedation

at the emergency department. Int J Evid Based Health.

2010;8(2):75-78.5. Green SM, Roback MG, Miner JR, et al. Fasting and

emergency department procedural sedation and analgesia:

A consensus-based clinical practice advisory. Ann Emerg

Med. 2007;49(4):454-461. Epub 2006 Nov 1.

6. Mace SE, Brown LA, Francis L, et al. Clinical policy:

Critical issues in the sedation of pediatric patients

in the emergency department. Ann Emerg Med.

2008;51(4):378-399, 399.e1-57.

7. American Society of Anesthesiologists. Practice guide-

lines for sedation and analgesia by non-anesthesiologists.

Anesthesiology2002;96:1004-1017.

8. Mavili E, Oztrk M, Ycel T, et al. Tongue metas-tasis mimicking an abscess. Diagn Interv Radiol.

2010;16(1):27-9. Epub 2009 Oct 19.

9. Jeon SH, Han DC, Lee SG, et al. Eikenella corrodenscer-

vical spinal epidural abscess induced by a fish bone.

J Korean Med Sci. 2007;22(2):380-382.

10. Kiluchi K, Tsurumaru D, Hiraka K, et al. Unusual pre-

sentation of an esophageal foreign body granuloma

caused by a fish bone: Usefulness of multidetector com-

puted tomography.Jpn J Radiol. 2011;29(1):63-66. Epub

2011 Jan 26.

11. Basanta WE. Advance directives and life-sustaining

treatment: A legal primer. Hematol Oncol North Am.2002;16(6):1381-1396.

12. Siegel MD. End-of-life decision making in the ICU. Clin

Chest Med. 2009;30(1):181-94, x.

13. Rondeau DF, Schmidt TA. Treating cancer patients who

are near the end of life in the emergency department.

Emerg Med Clin North Am.2009;27(2):341-354.

14. Medical futility in end-of-life care: Report of the

Council on Ethical and Judicial Affairs.JAMA.

1999;281(10):937-941.


7/12


103

For more information, contact:

Robert I. Broida, MD, FACEP, Chief Operating Officer,

Physicians Specialty Ltd., Canton, OH. Phone: (330) 493-

4443. E-mail: [email protected].

Ben Heavrin, MD, Assistant Professor of

Emergency Medicine, Vanderbilt University Medical Center,

Nashville, TN. E-mail: [email protected].

Bruce Janiak, MD, Professor of Emergency Medicine,

Medical College of Georgia, Augusta. Phone: (706) 721-


Unexpected Results

of Needless Tests CanCause Legal Problems

If you dont believe a diagnostic test is truly nec-essary but you order it anyway, you must beprepared for results to come back unexpectedlyabnormal, even if these incedentalomas have noth-ing to do with what brought the patient to the ED,warns Bruce Janiak, MD, professor of emergencymedicine at Medical College of Georgia in Augusta.

Janiak gives the example of a possible pneu-

monia patient who gets a chest X-ray that showsa dot on the other side of the lung. So you get aCT scan, which comes back inconclusive, and youget a PET scan, he says. You now have $10,000invested in the case, and the patient didnt need thechest X-ray in the first place. That is a problem.

Similarly, says Janiak, you dont want to findyourself ordering a complete blood count, whichis intended to look for secondary signs of infec-tion, that comes back with an elevated white countthat you dismiss as having nothing to do with thepatients presenting symptoms.

You will find yourself on the stand, trying toexplain why you ignored the result, Janiak says.Imagine yourself having to tell a jury why youorder tests you dont need, and when they comeback abnormal, you dont do anything about it.

John Burton, MD, chair of the Department ofEmergency Medicine at Carilion Clinic in Roanoke,VA,reviewed a case of an EP sued by a patient whocame in with abdominal pain. As part of the workup,the EP decided to do an abdominal series X-ray that

Since the assertion is made after the fact, whenthere has been an untoward outcome, says Broida,its easy to criticize the EP for failure to order atest. With the significant personal and profes-sional impact of a lawsuit on the physician defen-dant, it is understandable why defensive medicineis so common, he says.

A lawsuit is one of the most distressing thingsan EP may encounter during an entire career, saysBen Heavrin, MD, assistant professor of emergencymedicine at Vanderbilt University Medical Center inNashville, TN. It is tough to quantify the negativeimpact of this fear, but it is real and significant.

While testing should be ordered only when clini-cally indicated and not due to fears of litigation,says Heavrin, unfortunately, the medical/legalenvironment makes this quite difficult to achieve.

Since each patient presents with a unique set ofcircumstances, says Heavrin, the decision to pro-

ceed with diagnostic testing depends on the EPshistory and examination. In emergency medicine,the stakes are high, he says. Usually, the patient-provider interaction is an isolated one. A providerin the ED feels an obligation to rule out both emer-gent illness and occult illness.

For this reason, says Heavrin, there will alwaysbe legitimate legal risks to not performing a test.While EPs have several valid clinical decision sup-port tools to dictate when radiographs should orshould not be ordered, such as the Ottawa AnkleRules and the National Emergency X-Radiography

Utilization Study criteria, he says, these tools neverget the odds of missed injury to zero.

They come very close to zero, but a missrate of almost zero is not the same as zero, saysHeavrin. In a medical/legal environment wherestandards of care are proven after the fact in courtbased on a reputed expert, these decision supporttools may not provide a perfect defense.

If the EP chooses notto order a test that is com-monly ordered for a particular clinical condition,Broida advises discussing this with the patient andfamily. Document both the rationale and the dis-

cussion in the medical decision-making section ofthe ED record, he says.

Heavrin says the ED chart should include a dis-cussion of why certain tests were ordered or notordered, and how such tests, if ordered, affectedthe treatments rendered and the ultimate disposi-tion given.

Such documentation of medical decision-mak-ing is the key to providing a defense, should litiga-tion arise, says Heavrin.

Sources


8/12


Why Did You Order

Unnecessary Test?

Protocol Is One Defense

I

f there is absolutely no credible reason to think

that a patients symptoms are due to a heart attack,saysJohn Burton, MD, chair of the Department ofEmergency Medicine at Carilion Clinic in Roanoke,VA, you shouldnt be ordering tests such as cardiacenzymes. If you do, and the patient later sues becausehe or she had a cardiac condition that wasnt identi-fied in the ED, he says, the plaintiffs attorney will beable to ask the question, If you didnt believe it wasa heart attack, then why did you order that test tobegin with? You must have been considering it.

They will try to shoehorn the medical decision-making from the back end, by the tests that you

ordered, says Burton. That is something we see alot in these cases.

An ideal answer to this question, says Burton,would be: As part of the routine workup at this EDfor patients who arrive with chest pain, we do a stan-dardized evaluation using an agreed-upon protocol.

That is a very strong argument for the defense,says Burton. The EP can then say, I was actingwithin the context of this protocol, and this patient fellwithin that context. The argument is that the pro-tocol is what drove the ordering of the test, explainsBurton, not the fact that the EP had any particular

suspicion of myocardial infarction or unstable angina.You cant rest your entire defense on a proto-

col, says Burton, but its increasingly the case thattests may be ordered on patients because of a pro-tocol, which an individual EP assessing that patientwouldnt necessarily have ordered.

Details Can BackfireBurton sometimes sees a very detailed explana-

tion in a patients chart about why the EP isnt

included a single-view chest X-ray.It turned out that the patient died from an aortic

dissection, says Burton. The plaintiff argued thatthis could have been visualized on the chest X-ray,which was part of the abdominal X-ray series that theEP ordered.

If you think you should order some tests to pro-tect yourself, you should be careful which tests youorder, warns Burton. Some of those tests maybring information into the medical record that youreally dont want in there, because you werent con-sidering those things to begin with.

In the case of the patient with abdominal pain, theEP had never contemplated aortic dissection, saysBurton. The plaintiff had him in a tricky spot. Hehad ordered a test, but had not thoroughly inter-preted that test on behalf of the patient, he says.He was only looking at the belly, but the chestX-ray was clearly done.

Be Very StrategicSince delayed-diagnosis lawsuits often involve theEPs failure to act appropriately on a test that wasordered, says Burton, you may get into more troubleby ordering a bunch of tests. Youve got to be verystrategic about what you order.

Look at each individual patient, he recommends,and consider whether you can defend ordering a test,based on the patients presenting signs and symptoms.If you have every reason to believe a patient has a cer-tain diagnosis based on their signs and symptoms ascharted in the medical record, says Burton, then you

should be ordering a test to pursue that diagnosis.Some ED medical records reviewed by Burton

have indicated that a patient presented with signs andsymptoms consistent with subarachnoid hemorrhage,but the EP didnt order a CT scan and may not haveeven done a lumbar puncture.

In one case, the EP documented that a patientsheadache symptoms were consistent with priormigraine headaches, but the patient actually did havea subarachnoid hemorrhage and a lawsuit ensued.During discovery, it was noted that the triage notesconflicted with the EPs assessment, and stated that

the presenting symptoms were, in fact, very differentfrom the patients previous headaches.

The EP never addressed that conflict in the medi-cal record, says Burton, adding that the case settledout of court. In addition, the patient had no apparenthistory of migraines, which conflicted with the EPscharting.

This suggested that the EP was documenting thispurely as a defensive move, and was clearly position-ing themselves in the medical record to say that this

was not consistent with the diagnosis for subarach-noid hemorrhage, says Burton.


John Burton, MD, Chair, Department of Emergency

Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 266-


Source


9/12


105

other groups are putting EPs in a huge bind,according toSandra Schneider, MD, professor ofemergency medicine at University of Rochester(NY) Medical Center.

Schneider is referring to Use of BrainComputed Tomography in the ED for AtraumaticHeadache, included in CMSs HospitalOutpatient Quality Data Reporting Program.Based on very loose data, measures are beingpromulgated that suggest we do far too manyCT scans for atraumatic headache, explainsSchneider.

According to the measures, patients shouldnever be given a CT scan if certain criteria are notpresent, notes Schneider, but the problem is that2% of people with subarachnoid hemorrhage willnot meet the criteria. So if the EP follows theseguidelines, then they would miss 2% of subarach-noid hemorrhage cases, which would cause themto be sued, says Schneider.

Claims data were used to evaluate the qualityindicator, adds Schneider, but this approach willmiss some of the criteria that would show a CTscan was indicated for a given patient. Accordingto the guidelines, for instance, one of the indica-tions for a CT scan is a thunderclap headache.I may have written thunderclap headache onthe history or the X-ray requisition, but not as adischarge diagnosis, says Schneider. Since thismeasure will only look at discharge diagnosis, itwill not pick that person up as meeting the criteriafor a CT scan.

Schneider says that another problem is thatthe CMS measure pertains to patients over 65,and there is absolutely no evidence that elderlypeople have an increased risk of cancer fromCT scans. It doesnt make scientific sense todecrease the number of CT scans in this popula-tion. It just increases the liability for emergencyphysicians.

considering a certain diagnosis. The EP may say,I dont think this is meningitis because the patientdoesnt have A, B, or C. Then the patient is dis-charged and dies of meningitis, he says.

A plaintiffs attorney or expert later reviewingthe medical record gets the impression that the EP istrying to talk him or herself out of a diagnosis beingconsidered, says Burton. When the EP gets verydetailed about why they dontthink the patient hassomething, it can be injurious, he says. When thepatient does have that illness, you can attack the EPon their medical decision-making and rationale.

If the EP says, The chest pain was reproducibleand, therefore, I didnt think it was a heart attack,for example, a plaintiffs attorney can go find some-thing in the literature to refute this, says Burton.

For this reason, Burton advises using the less ismore approach when charting medical decision-making. If an EP charts, for instance, that, based onthe Pulmonary Embolism Rule-out Criteria (PERC)

rule, this patient did not appear to have a PE, theplaintiff can argue the relevance of the PERC rule,says Burton. It then becomes a question of whetherthe PERC rule is strong enough for a successful legaldefense, which depends on the diagnosis.

In the case of PE, probably so. In the case of achest pain patient, probably not, says Burton.

The bottom line, says Burton, is that, if youregoing to quote it, youre going to have to live withit, even if the patient has what youre saying theydont have. If you get very specific, you are lockedinto a certain argument. The plaintiffs attorney can

always make a counterargument.Burton advises using more general terms, such as,

Based on todays evaluation in the ED, the patientdid not appear to have a presentation consistentwith pulmonary embolism.

If you are faced with explaining that when a suitis brought against you two years later because thepatient died of pulmonary embolism, you can pro-vide the details, he says. Of course, at that time,you will know what the diagnosis was.

Source


Sandra Schneider, MD, Professor, Emergency Medicine,

University of Rochester (NY) Medical Center. Phone: (585)

463-2970. E-mail: [email protected].

Quality Measure BringsAdditional Risks for EDEPs in huge bind

Quality measures from the Centers forMedicare & Medicaid Services (CMS) and


10/12


internal quality control or medical studies done tolower death rates and improve patient care cannotbe admissible as evidence or discoverable.

The purpose is to encourage medical professionalsto be candid when conducting internal reviews andmedical studies, according to Robert D. Kreisman,a medical malpractice attorney with Kreisman LawOffices in Chicago.

However, not every document a peer reviewcommittee uses is necessarily inadmissible, saysKreisman. While any document generated or createdspecifically for the peer review committee is pro-tected, he explains, documents that arent necessarilyan integral part of the peer review process are notprivileged.

For example, minutes of the peer-review meetingwould be privileged, while anything that is a part ofthe medical chart itself would not be privileged. Sinceonly documents that can be shown to have beengenerated specifically for the peer-review process are

privileged, any documents generated before or afterthe review process formally begins or ends are notcovered, adds Kreisman.

Even peer-review summaries made in interview-ing doctors before the peer-review process officiallybegins are not privileged, he says.

Since the Medical Studies Act is not intended toprotect hospitals from potential liability, but ratherto help improve patient care, any documents orinformation that do not specifically serve this pur-pose are not privileged, says Kreisman. For example,any documents generated in the normal course of

hospital business are not privileged, such as regula-tions and bylaws, credentialing requirements, andstaff memos.

Likewise, any information the hospital is requiredto generate for government agencies, such as dataconcerning the number of MRSA patients in a hospi-tal at a given time, is not privileged, says Kreisman.Such data is not aimed at internal review.

However, even those documents that are integralto investigating poor hospital or medical care arenot necessarily privileged unless they are specificallyrelated to the peer-review process, notes Kreisman.

If the hospital investigates a patients complaintabout the quality of care in order to avoid a potentialmalpractice claim, none of the documents generatedin the course of the investigation would be privi-leged, explains Kreisman, unless the investigationwas initiated by a peer-review committee.

Any conversations or reports generated by stafffollowing an unusual event are not privileged, evenif they were done in anticipation of the peer-reviewprocess, says Kreisman.

Are Personnel Files,QI, or Incident Reports

Discoverable?

I

magine a plaintiffs lawyer poring over stacks ofdocuments provided by the defense as a result of a

lawsuit alleging ED malpractice, and finding the state-ment, This nurse will eventually kill a patient.

You cannot imagine how many comments likethis have been turned over to a plaintiff in a lawsuit,says Linda M. Stimmel, JD, a partner at Wilson ElserMoskowitz Edelman & Dicker LLP in Dallas, TX.

You may wrongly assume that certain pieces ofdocumentation or information are not ever discover-able, or admissible in a court of law, warns Stimmel.This can cause huge problems in the defense of alawsuit, she says.

A key issue in any ED malpractice lawsuit is whatdocuments will be available to the plaintiffs counseland, eventually, to a jury. The critical documentwill almost always be the chart, she says. Strive foraccuracy and completeness and objective, not sub-jective, charting.

Do

notassume that incident reports and personnelfiles that contain nursing evaluations and past com-plaints will always be confidential, advises Stimmel. Inmany states, incident reports are considered documentscreated in the regular course of business and will bediscoverable in a lawsuit, she explains, and most states

also allow plaintiffs to have copies of the personnelfiles of staff that provided care to the patient.

I have defended many lawsuits where we weredamaged by notations in a personnel file that showedprior disciplinary actions toward a nurse for the sameissues in the lawsuit, says Stimmel.

That allows the plaintiff to argue that the emer-gency department administration had notice ofpotential harm and ignored it, says Stimmel, and toargue that the plaintiff should be awarded damagesfor gross negligence.

While staff evaluations that document disciplin-

ary issues do need to be created, Stimmel says to havemedical staff or hospital committees direct these evalu-ations. You can then keep those out of a personnelfile, says Stimmel. The safest method is to alwaysrealize that any of those documents may be discover-able in a lawsuit.

Not Necessarily InadmissibleIn Illinois, the Medical Studies Act ensures that

any documents created and used for the purposes of


11/12


107

In order to be privileged, the information needs tobe generated during the limits of the peer-review pro-cess only, says Kreisman, and investigations into hos-pital quality control issues that are not directly relatedto patient care, such as slip and fall accidents, are notprivileged.

While documents and information generated for apeer review committee or for medical studies is privi-leged, Kreisman says that there are even some excep-tions to that rule. For example, the actual results of apeer review committee hearing are not privileged, norare any resulting changes to hospital policies, he says.

Any resulting suspensions or revocation of privilegesare not privileged, and can be submitted into evidence,says Kreisman. While the results of the peer reviewcommittee are not privileged, the internal conclusionsof the committee that might have led to those resultsare privileged, he says. While the formal results of apeer review are therefore discoverable in Illinois, itemssuch as committee meeting minutes are not.

To establish that certain documents are, in fact, priv-ileged, simply asserting that documents and informa-tion were generated for a peer review committee or foruse in a medical study is not enough, says Kreisman.

Unless the hospital attorney proves this to the court,he explains, refusal to produce requested documentswill lead to a motion to compel brought by plaintiffscounsel. A court hearing will follow to determinethe propriety of the hospitals refusal to produce therequested documents, says Kreisman.

Typically, the attorney will be required to generatea log of all the documents and information that he or

she considers privileged, says Kreisman, but the ulti-mate determination rests with the court.

In some cases, the court might require an in cam-erainspection of the privileged documents in orderto establish that they are, in fact, privileged, he says.Whether the documents requested are privileged aspart of a peer review process or medical study is a factissue decided by the court.

In one case, a hospital physician wrote a letter tohis department head outlining the course of events sur-rounding a complicated birth that resulted in disabili-ties to the child.1The delivering doctor assumed that

his letter would be used for internal quality assuranceissues and was, therefore, privileged, says Kreisman,and the obstetrics department head confirmed that theletter triggered the internal quality control proceedingsregarding this matter.

However, since the internal review process did notformally begin for several months, the court held thatthe physicians letter was not generated specificallyfor the peer review committee, because it preceded thecommittee meeting and was not specifically done on

CNE/CME OBJECTIVESAfter completing this activity, participants will be able to:

1. Identify legal issues related to emergency medicine practice;

2. Explain how the legal issues related to emergency medicine

practice affect nurses, physicians, legal counsel, management,

and patients; and

3. Integrate practical solutions to reduce risk into daily practice.

CNE/CME INSTRUCTIONS

HERE ARE THE STEPS YOU NEED TO TAKE TO EARN

CREDIT FOR THIS ACTIVITY:

1. Read and study the activity, using the provided references for

further research.

2. Log on to www.cmecity.comto take a post-test; tests can be

taken after each issue or collectively at the end of the semester. First-

time users will have to register on the site using the 8-digit subscriber

number printed on their mailing label, invoice, or renewal notice.

3. Pass the online tests with a score of 100%; you will be allowed

to answer the questions as many times as needed to achieve a score

of 100%.

4. After successfully completing the last test of the semester,

your browser will be automatically directed to the activity evaluation

form, which you will submit online.

5. Once the evaluation is received, a credit letter will be sent to you.


Robert D. Kreisman, Kreisman Law Offices, Chicago, IL.

Phone: (312) 346-0045. Fax: (312) 346-2380. E-mail: bob@

robertkreisman.com. Web: www.robertkreisman.com.

Linda M. Stimmel, JD, Partner, Wilson Elser Moskowitz

Edelman & Dicker LLP, Dallas, TX. Phone: (214) 698-8014.

Fax: (214) 698-1101. E-mail: [email protected].

behalf of the committee.In order for documents to be privileged, they

have to be generated specifically for the peer reviewcommittee, at the committees request, and duringthe timeframe of the review process itself, explainsKreisman. Any information that does not satisfythese requirements may be ruled discoverable by acourt, and be admissible into evidence, he says.

REFERENCE1. Berry v. West Suburban Hospital Medical Center, 338 Ill.

App.3d 49 (1stDist. 2003).

Sources


12/12

108 ED LEGAL LETTER / S t b 2011

CNE/CME QUESTIONS

Kay Ball, RN, PhD, CNOR, FAAN

Consultant/Educator,

K&D Medical Inc.,Lewis Center, OH

Sue A. Behrens, APRN, BC

Director of Emergency/ ECU/

Trauma Services, OSF Saint

Francis Medical Center, Peoria, IL

Robert A. Bitterman, MD JD

FACEP

President, Bitterman Health Law

Consulting Group, Inc.

Harbor Springs, MI

Eric T. Boie, MD, FAAEM

Vice Chair and Clinical Practice

Chair, Department of Emergency

Medicine, Mayo Clinic; Assistant

Professor of Emergency Medicine,

Mayo Graduate School of

Medicine,

Rochester, MN

Theresa Rodier Finerty, MS, RN,

CNA, BC

Executive Director,

OSF Aviation, LLC,

Peoria, IL

James Hubler, MD, JD, FCLM,

FAAEM, FACEP

Clinical Assistant Professorof Surgery, Department of

Emergency Medicine, University

of Illinois College of Medicine at

Peoria; OSF Saint Francis Medical

Center,

Peoria, IL

Jonathan D. Lawrence, MD, JD,

FACEP

Emergency Physician, St. MaryMedical Center,

Long Beach, CA

Assistant Professor of Medicine,

Department of Emergency

Medicine,

Harbor/UCLA Medical Center,

Torrance, CA

J. Tucker Montgomery, MD, JD,

FCLM

Attorney, Knoxville, TN

Gregory P. Moore MD, JD

Attending Physician, Emergency

Medicine

Residency, Madigan Army

Medical Center,

Tacoma, WA

Richard J. Pawl, MD, JD, FACEP

Associate Professor of

Emergency Medicine

Medical College of Georgia,

Augusta

William Sullivan, DO, JD, FACEP,

FCLM

Director of Emergency Services,

St. Margarets Hospital, Spring

Valley, IL; Clinical Instructor,

Department of EmergencyMedicine Midwestern University,

Downers Grove, IL; Clinical

Assistant Professor, Department

of Emergency Medicine,

University of Illinois, Chicago;

Sullivan Law Office, Frankfort, IL

EDITORIALADVISORYBOARD

EDITOR-IN-CHIEFLarry B. Mellick, MD, MS, FAAP, FACEP

Professor of Emergency Medicine, Professor of Pediatrics,

Department of Emergency Medicine,

Medical College of Georgia, Augusta

EDITORIAL BOARD

9. If the EP chooses notto order a test that is com-

monly ordered for a particular clinical condition,

which of the following is recommended, accord-

ing to Robert I. Broida, MD, FACEP?

A. Avoid discussing this with the patient and

family.

B. Omit any discussion of your rationale in the

ED record.

C. Discuss this with the patient and family, and

document both the rationale and the discus-

sion in the medical decision-making section

of the ED record.

D. Avoid specific references to any diagnostic

tests that were not ordered in the ED in your

documentation.

10. Which is true regarding liability risks involvingdiagnostic tests ordered in the ED, according to

John Burton, MD?

A. There are no additional legal risks involving

ordering of tests such as cardiac enzymes,

even if there is no credible reason to think a

patients symptoms are due to a heart attack.

B. EPs may expose themselves to additional

legal risks by giving a very detailed expla-

nation about why a certain diagnosis isnt

being considered.

C. An EP cannot use the fact that the ED has a

standardized evaluation using an agreed-upon protocol as part of his or her defense to

explain why a particular test was ordered.

D. If an ED has a standardized protocol that

includes ordering of a specific test, the plain-

tiffs attorney cant question the EP about

why the test was ordered.

11. Which is true regarding admissibility of docu-

ments in the event a malpractice lawsuit is

filed against the ED, according to Robert D.

Kreisman?

A. While any document generated or createdspecifically for the peer review committee is

protected, documents that are not an inte-

gral part of the peer-review process are not

necessarily privileged.

B. In all states, incident reports are not con-

sidered documents created in the regular

course of business and are therefore not

discoverable in a lawsuit.

C. Documents that are integral to investigat-

ing poor hospital or medical care are always

privileged, even if they are not specificallyrelated to the peer-review process or involve

investigations not initiated by the peer

review committee.

D. Simply asserting that documents and infor-

mation were generated for a peer-review

committee or for use in a medical study is

sufficient to establish that documents are, in

fact, privileged.

Dodging the Bullet

Documents

Transcript of Dodging the Bullet