The newsletter for members of the Emergency Physicians Insurance Company Risk Retention Group
The newsletter for members of the Emergency Physicians Insurance Company Risk Retention Group
Spring 2007 - In this Issue
Message from the CEO, EPIC Insurance Managers
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Graham Billingham, MD, FACEP President & CEO, EPIC Insurance Managers |
EM Malpractice in 2007
EPIC is moving into our fourth year! We look forward to continuing our work to prevent claims before they happen, to grow our insurance company, and to provide excellent service to our clients.
Recent studies show a decline in frequency of malpractice claims, although severity appears to be increasing. Our risk prevention focus for 2007 will continue to place emphasis on three areas of malpractice risk: high risk clinical complaints, operational risk, and patient communication. In reviewing our current clams experience we continue to find elements of all three exposures.
High Risk Complaints - chest pain, abdominal pain, stroke, fractures, wounds, trauma, and pediatric fever
Operational Risk – orienting new providers, triage, hand-offs, documentation, discharge and follow-up, staffing ratios, on-call issues, holding patients, overcrowding, and working in teams
Patient communication – poor customer satisfaction, language barriers, setting expectations, and “I’m sorry” concept
Top reasons for claims – failure to diagnose, failure to treat, delay in treatment, delay in diagnosis
An article in February’s Annals of Emergency Medicine by Kachalla, MD et al, looks specifically at missed and delayed diagnoses. Failures in the diagnostic process include:
Contributing factors were identified as:
Root causes found that most of the missed diagnoses typically resulted from multiple breakdowns in process. To prevent them will require multiple solutions such as a blend of education, auditing, communication, technology, and protocols.
In conclusion, most malpractice in the ED stems from a failure to do the basics and therefore may be preventable. Our goal to carefully select groups into the EPIC family who are committed to both patient safety and risk prevention continues. We believe that by implementing risk reduction processes we will prevent claims, reduce claims loss, and improve patient care overall.
Emergency Physician Responsibility and Liability for PAs and NPs in the ED
Robert A. Bitterman, MD, JD, FACEP
EPIC Board of Governors
Claims Management Committee Chair
The key issue in “negligent supervision” litigation is identifying who is the “supervising physician” for purposes of responsibility and liability for that particular case.
Introduction
Physician assistants and nurse practitioners, often called mid-level providers or physician extenders, are now commonly involved in providing emergency care. They may work for the hospital, the emergency physician staffing group, individual emergency physicians or members of the admitting medical staff. Their roles vary, even in similar settings. For example, some emergency departments utilize mid-level providers only in lesser acuity areas, such as urgent cares or “fast tracks.” Other EDs use them to assist the emergency physician with the examination, work-up and admission of high acuity presentations such as patients with ischemic chest pain, dyspnea or stroke syndromes. Additionally, they are now frequently utilized by physicians who take calls for the ED to lessen the burden related to their on-call duties.
Whatever their employment model or role in patient care, their interactions with the ED create another potential source of liability for the emergency physician. This article will discuss some of the common areas of risk in working with mid-level providers in the ED.
It may surprise many physicians to learn that in some of the large emergency physician groups in the country, their greatest areas of malpractice losses relate directly to cases involving physician assistants. In fact, the largest malpractice award in history against an emergency physician/emergency physician group, $217 million, which occurred in Florida late in 2006, centered chiefly on the care provided by an allegedly unlicensed physician assistant in the ED. [1]
Mid-Level Provider Scope of Practice
All states, the District of Columbia, and the majority of U.S. territories have laws governing the practice of PAs and NPs. [2, 3] Each state defines and/or limits the scope of practice allowed by each type of provider and addresses the required level of supervision. [2, 4]
These laws are highly variable, so physicians working with mid-level providers must be familiar with the applicable laws in their own state governing the interactions with such providers. Almost all states and the District of Columbia allow mid-level providers to prescribe medications, either under supervision or in collaboration with a physician. [2, 5, 6] Prescribing controlled substances may be handled differently, and is less often allowed by the states. [5, 6]
From the emergency physician’s perspective the distinction between a PA and an NP, for both clinical applicability and legal liability, often hinges on how a state defines the terms “supervision” or “collaboration” and how much of each it requires of the physician.
Physician Assistants
Every state allows physicians to utilize physician assistants. Their practice is governed by federal and state statutes and subject to jurisdiction of the state board of medicine, which issues their license to practice. [2]
While PAs obtain an independent license, they can’t practice independently. PAs may only practice under the license of a“supervising” physician, in essence functioning as an extension of the supervising physician. Their practice is limited to their supervising physician (or his or her delegate) who must always be available for consultation or to assume total care of the patient. Typically, the PA must inform the state of the named supervisor who agrees in writing to accept medical and legal responsibility for the PA. [2]
Legally, a PA’s scope of practice is the same as the scope of practice of their supervising physician. Practically, though, their practice is limited by their training, experience, expertise, as well as any constraints placed on their practice by the hospital credentials committee or the supervising physicians themselves.
The physician is responsible for supervising the physician assistant at all times and in all settings within the ED. Both the American Medical Association (AMA) and the American College of Emergency Physicians (ACEP) endorse constant supervision of PAs in the emergency department. [7, 8]
“Supervision” means the physician actively and directly oversees patient care provided by the PA. The supervising physician must ensure that the standard of care is met and that proper documentation is in the medical record.
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Table 1. Each Individual PA’s Scope of Practice is Defined By:
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Nurse Practitioners
NPs are usually regulated by the state board of nursing, not the medical board. In five states though, (Florida, North Carolina, Virginia, Massachusetts, and South Dakota) their practice is controlled by both the board of nursing and the board of medicine. [9] The governing state statutes are those that apply generally to nurses; usually the states do not have separate enabling statutes for NPs as they do for PAs. [6]
NPs are independently licensed and in the vast majority of states, unlike PAs, they can actually practice independently without being an “extension” of a physician or requiring “supervision” by a physician. Practically though, an NP’s scope of practice is actually more limited than a PA’s because many states require at least some form of limited physician “supervision” and/or more commonly a formal “collaborative” agreement with a physician. [6] The states also typically require NPs to adhere to strict clinical protocols for diagnosis and treatment and have in place an advanced arrangement whereby a physician agrees to be available at all times to directly communicate with the NP and agrees to regularly review the NP’s practice (though not necessarily each individual patient). [6]
In many states (such as North Carolina, Florida, Michigan, Nevada, and Mississippi), an NP can prescribe medications only pursuant to written protocols and/or must have in place, in advance, a collaborative agreement with a physician to be able to prescribe (such as Florida, Nevada, Mississippi, Tennessee, and Maryland). [6, 10, 11] Some states (such as Georgia) prohibit NPs from prescribing narcotics. [6, 11]
“Collaboration” typically means an NP and a collaborating physician work together, act as a team, cooperate, and that the physician be “available” to help out when needed.
The official stance of the American Medical Association and the American College of Emergency Physicians is that nurse practitioners should be under the supervision of physicians at all times, rather than work through a “collaboration” agreement with physicians. [12] [13]
Indirect limitations of a mid-level provider’s scope of practice.
States limit a PA’s or NP’s scope of practice in other ways not often considered by emergency physicians. For example, most state psychiatric or mental health involuntary commitment laws statutorily require examination and certification by a physician. My home state of North Carolina requires two examinations and certifications before an individual can be involuntarily committed due to mental illness. [14] The initial exam can be done by a licensed physician or eligible psychologist, and the second exam must be done by a licensed physician. Thus, in North Carolina a PA or NP can never perform a commitment examination or complete the certification documents. [14] In many other states it is statutorily required that two licensed physicians examine the patient before the commitment process can proceed.
Another example may be a state statute, an EM Residency Review Committee requirement, a hospital licensure law, or a medical staff rule that requires the supervision of students, interns, or residents be done under the "direction and responsibility of a duly licensed physician." [15] This means that even if at your hospital the PAs have been doing wound care for 20 years and have become exceedingly competent, they still can’t legally supervise an eager med student’s first scalp laceration repair.
One court summarized these indirect limitations on mid-level providers’ scope of practice in a nutshell, stating, “…where the Legislature has prescribed that an action be taken by a physician, it must only be taken by a physician licensed to practice medicine and not by someone supervised by or collaborating with a physician.” [16]
Liability of Emergency Physicians
Negligent“Supervision” of PAs.
The primary source of liability for emergency physicians related to PAs is negligent supervision. [11] [17] Some states, such as Texas, expressly impose legal responsibility on the named supervising physician for their PA’s negligence. [18] Practically, since the PA functions solely as an extension of the supervising physician (i.e., “assists” the physician and cannot practice independently), the supervising physician will always be liable for the errors of the PA.
The courts have universally held that a PA is simply the agent of the physician and that the physician could not disclaim responsibility for any orders, omissions, or negligence of the PA. In other words, physicians are ultimately responsible and liable for everything done by the PA. [19]
The key issue in “negligent supervision” litigation is identifying who is the “supervising physician” for purposes of responsibility and liability for that particular case.
In each state, the PA must identify one physician to the medical board as their “supervising physician’. [2] Absent any legally allowable delegation of the duty to supervise the PA to another physician, the identified physician will be liable for the PA, even if not in the ED at the time of service or in any way involved in the care of the patient. Since the PA is the agent of the physician, the physician remains liable for the acts of his agent.
Note that this is true even if the PA is an employee of the hospital or emergency physician staffing group, and not employed by the individual named supervising physician. A different employer would only potentially add to the list of defendants in the case. (Whether others would also be liable or could invoke the “borrowed servant doctrine” as a defense gets complicated and beyond the scope of this article.) [11]
What typically occurs in most ED groups is that one physician is listed as the named supervising physician with the medical board, as required by state law, but all the other emergency physicians in the group are identified as physicians with “delegated authority” to supervise the PA when working alongside the PA in the ED. The delegated physicians then sign the PA’s charts for all patients seen by the PA during their shift in the ED. Under these circumstances, it is the physician who is supervising and signing the charts who will be the liable “supervising physician” if the care of the PA is deemed negligent.
Any physician charged with reviewing a PA’s treatment in real time or their medical records after the fact may also be held liable for failure to spot mistakes and take steps to correct them in a timely manner. This could be the “named supervisor” as listed with the state or the “supervising physician” in the ED that shift with the duty to sign the PA’s ED medical records. [20]
Negligent“Supervision” or“Collaboration” of NPs.
The same liability will apply to “supervision” of an NP if such supervision is required by law, set by the hospital’s credentialing committee, or agreed to by the emergency physicians in their contract with the hospital. If an emergency physician is the “collaborating” physician with an NP, that physician potentially has independent liability for “negligent collaboration.” For example, if the NP discusses a case with the collaborating physician but the physician doesn’t personally examine the patient and the patient suffers an adverse outcome, the physician could be sued for failure to examine the patient if a reasonable and prudent “collaborator” would have seen the patient and corrected the NP’s negligence.
Some hospitals hire NPs to staff low acuity areas of the ED, such as fast-tracks or urgent care areas, providing them hospital-generated algorithms to treat these patients. The hospitals then expect the emergency physicians to agree to “collaborate” with the NP whenever the NP requests assistance. The hospital may also require the emergency physicians to sign all charts of the NP, just like they do with the PAs. In these circumstances, the emergency physicians could be liable for claims due to the negligence of the NP, claims of “failure to supervise” or “failure to collaborate appropriately,” and claims for “failure to review the records and correct errors in a timely fashion.”
The best way to avoid liability in dealing with NPs in the ED is to refuse to co-sign their medical records, even if expected to do so by the hospital, in any case where the emergency physician does not personally examine the patient. If the NPs see patients on their own, require the NP/hospital to have a “collaborating” physician identified who is responsible for the NPs care in the ED and for signing the NP’s charts. This practice will isolate physician liability for the NP to the “collaborating” physician. If the NP asks one of the emergency physicians on duty (who is not the “collaborating” physician) for assistance with a patient, then the emergency physician has two options: first, personally see the patient and accept liability for his own actions (and bill for his services); or second, don’t see the patient (and don’t bill the patient) but provide information or a “curbside consult” as a courtesy to the NP. In most states, the “advising” physician will not be held liable for the NP’s actions because providing advice to the patient’s primary caregiver (in this case an NP who has a license to practice independently) does not establish a doctor-patient relationship with the patient. If the patient suffers an adverse outcome due to the negligence of the NP, then the NP can be sued and potentially the NP’s “collaborating” physician can be sued, but not the emergency physician who provided the advice. The NP was free to accept or reject the information provided by the emergency physician, was free to involve the responsible collaborating physician but chose not to, and could have transferred care of the patient to the emergency physicians on duty but again chose not to do so.
However, the providing of “free advice,” particularly when present in the emergency department and to a caregiver with less privileges, is rife with risk. Better to create bright lines of expectation and responsibility: if an NP asks you about a patient’s care see the patient yourself, document your involvement and recommendations, and bill for your services. If not asked about the patient, don’t sign the NP’s charts; let the “collaborating” physician sign them and accept the responsibility and liability.
Failure to communicate.
As you can imagine, lack of communication between the PA and the supervising physician or the NP and the supervising or collaborating physician is a major factor leading to “failure to supervise/collaborate” claims against an emergency physician. The emergency physicians are responsible for ensuring that the mid-level providers know when to consult or involve them in the care of patients. They must know the strengths and weakness of their mid-level providers and when it is necessary to intercede in the care of their mutual patients. Working with a limited number of mid-level providers on a regular basis enhances the confidence, comfort level, and competence of the emergency physicians.
Misrepresentation or aiding and/or abetting the unauthorized practice of medicine.
Patients who suffer damages may claim it appeared they were being treated by a physician, not a mid-level provider, and sue for “misrepresentation”: “If I had known the incompetent %#^>@# was a PA I would have insisted on seeing a physician, and my brain abscess would have been discovered and treated earlier.” The credentials of the caregiver must be clear – misrepresentation or even failure to disclose the fact that the emergency care provider was a mid-level provider and not a physician may lead to litigation.
Hospital policy or ED group policy should require mid-level providers to wear a name badge which clearly identifies their licensure, and require them to introduce themselves as a PA or NP when initiating all patient interactions in the ED. In some states, such as Texas, the law requires a PA to wear a name tag that identifies the PA as a PA. [21]
Allowing a PA or NP to practice outside the scope of their privileges or licensure can lead to a claim for aiding and or abetting the mid-level provider in the unauthorized practice of medicine, [22] e.g, allowing the PA to examine and certify the involuntary commitment on a psychiatric patient in a state that requires physicians to conduct the examination and certification. [14, 23] Such practice, especially if knowingly allowed, could also lead to suspension or revocation of the physician’s license to practice medicine.
In the $217 million Florida verdict mentioned in the introduction, the PA involved in the care of the ED patient allegedly had failed his certification exams on a number of occasions, and thus was not licensed to function as a PA. Allegedly the patient was seen only by the pseudo-PA and never by a physician, so the emergency physicians responsible for the ED could be charged with aiding and abetting the pseudo-PA’s illegal practice of medicine. [1]
Supervising physicians must “absolutely positively” know the scope of their mid-level provider’s privileges and must be ever-vigilant in assuring that they act within their scope of privileges at all times.
Avoiding Liability When Working with PAs and NPs.
The key to avoiding liability related to interactions with mid-level providers is knowledge of applicable laws and regulations, detailed policies and procedures, education of the players, and setting expectations on the roles and responsibilities of the PA/NP and the involved physicians. Performance needs to be monitored on an ongoing basis, and the relationship and documentation of supervisory or collaborative efforts should be an integral part of the emergency department’s quality assurance program.
Recommendations for a process and plan to follow concerning the use of mid-level providers in the ED are included in Table 2. The emergency physician group should charge one physician with establishing, implementing, and managing the mid-level providers’ involvement in the care of emergency patients. However, all physicians who work with the PAs or NPs must have a working understanding of the relevant medical and legal issues involved to avoid potential liability.
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Table 2. Recommendations for Utilizing PAs or NPs in the Emergency Department
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Qualifying Mid-Level Providers to Provide“Medical Screening Examinations” in the ED.
The emergency physicians must arrange for the board of the hospital to designate that PAs and NPs, with the proper supervision or collaboration arrangements in place, are authorized to perform medical screening examinations (MSE) on patients presenting to the ED. Federal regulations (EMTALA) require that any patient presenting to the emergency department must be provided a MSE by “qualified medical personnel” (QMP) who are identified and designated by hospital bylaws or rules and regulations approved by the governing body of the hospital. [28, 29]
The Centers for Medicare and Medicaid Services (CMS), the agency which enforces EMTALA, specifically states that the hospital may not permit the medical director of the ED to determine who can perform the MSE. CMS wants to hold the governing body “properly accountable for this function [medical screening],” and not allow the hospital or the medical director to make “informal personnel appointments that could frequently change.” [29] In other words, the government wants the hospital to have a formal process to determine that a non-physician practitioner, such as a PA or an NP, is qualified to perform the screening examinations.
At a minimum, include on the mid-level provider’s delineation of privileges a detailed description of their qualifications and expressly note their ability to perform medical screening examinations in the ED. Since a practitioner’s privileges are ultimately approved by the hospital board, this would satisfy the regulatory requirement and avoid potential liability for failure to perform a medical screening exam in a manner required by federal EMTALA law. [24]
Mid-Level Providers Role in Transferring Unstable Patients under Federal Law.
Whereas mid-level providers cannot sign or certify an order for involuntary commitment of a psychiatric patient, they can sign a transfer order sending a patient, including a psychiatric patient, to another facility under certain circumstances. EMTALA requires that medically indicated transfers of patients with emergency medical conditions be ordered and certified by a physician. [30] The physician is “certifying” that the benefits of the transfer outweigh the risks of the transfer and that the transfer is in the best interests of the patient. However, if a physician is not physically present in the emergency department at the time an individual is transferred, then “a qualified medical person (QMP), as determined by the hospital in its bylaws or rules and regulations,” can sign the required certification and transfer order. A PA or NP can be the QMP, if so designated by the hospital as discussed in the previous section. [28, 29]
The mid-level providers must consult a physician prior to the transfer. The physician must be the person who authorizes the transfer and must later countersign the QMP’s transfer order within a reasonable period of time. [30, 31] CMS’s Interpretive Guidelines specifically state that “… a QMP may sign the certification of benefits versus risks of a transfer only after consultation with the physician who authorizes the transfer. If a QMP determines that the transfer to another facility is in the best interest of the individual and signs the certification of benefits versus risks, a physician’s countersignature must be obtained within the established timeframe according to hospital policies and procedures.” [29]
Note that EMTALA does not govern the transfer of stable patients, only unstable patients, as defined by the law. However, it is highly recommended as a prudent risk management practice that all transfers, regardless if the physician believes the patient to be stable or unstable at the time of transfer, be handled in exactly the same manner and with the same EMTALA paperwork. Uniformity and universal compliance with the EMTALA transfer requirements mitigates medical error and both civil and regulatory legal liability. [24]
Dealing with Mid-Level Providers Involved in On-Call Services to the ED.
A number of physicians, such as pediatricians, orthopedic surgeons, internists, and cardiologists frequently use physician assistants or nurse practitioners in their practices and interactions with the ED. However, both the EMTALA statute and CMS’s regulations distinctly require the hospital to provide on-call physicians, so it is clear that the hospital may not allow a mid-level provider to take the ED call instead of a physician. [32] (Critical Access Hospitals (CAHs) however, as defined by federal regulations, while subject to EMTALA’s requirements may allow PAs or NPs to take ED calls in certain circumstances. [33])
The real issue, however, is whether the on-call physicians may permit one of their associated mid-level providers to answer the call from the ED or evaluate the patient in the ED on their behalf. One of the government’s “guidance” comments has confused the issue. CMS states that:
"…circumstances [exist] in which a physician assistant may be the appropriate practitioner to respond to a call from an emergency department … that is providing screening or stabilization mandated by EMTALA…. However, any decision as to whether to respond in person or direct the physician assistant to respond should be made by the responsible on-call physician, based on the individual’s medical needs and the capabilities of the hospital, and would, of course, be appropriate only if it is consistent with applicable State scope of practice laws and hospital bylaws, rules, and regulations." [34] [29]
This language has been misinterpreted by some to mean that the on-call physician may decide whether the mid-level provider can answer the page from the emergency department, or respond in person to the emergency department, instead of the on-call physician.
The decision of who to speak to by phone or who must present to the emergency department must be left to the emergency physician or other medical staff member requesting the services of the on-call specialists. The government agrees, stating:
"We believe any disagreement between the two [emergency physician and the on-call specialist] regarding the need for an on-call physician to come to the hospital and examine the individual must be resolved by deferring to the medical judgment of the emergency physician or other practitioner who has personally examined the individual and is currently treating the individual." [35] [29]
Thus, it’s perfectly appropriate to list the name of the on-call physician on the call panel and the name of the physician’s mid-level provider. For routine admissions or follow-up care, the emergency physician can contact the midlevel provider to arrange the necessary services. However, for true emergencies or other instances where the emergency physician wants phone consultation from the on-call specialist directly, or needs the specialist to come to the emergency department to evaluate and treat the patient, the emergency physician must be able to contact the specialist directly at any time. The choice of which on-call individual to contact and which one must come to the emergency department must always rest with the physician examining the patient in the emergency department.
Malpractice Insurance Coverage for Mid-Level Providers
PAs and NPs can be sued individually for their own negligence, just like any other licensed member of the health care team, and will be named alongside the supervising or collaborating physicians involved in the claim. Check with your carrier to determine if your PAs or NPs are provided individual policies, and thus individual limits, or are named as “additional insureds” in your contract.
Additional insureds share insurance limits with the supervising physician. For example, if the physician has a $1M per incident policy there will be only $1M to cover the claim for the combined negligence of the physician and the PA; not $1M to cover the physician and another $1M to cover the PA. The amount of coverage each group should have for its physicians and mid-level providers depends on the individual circumstances of each group; one group may want individual limits instead of the shared limits, whereas another group may decide it’s not worth the additional cost in its existing malpractice environment. Each group should, however, at least understand the nature and amount of coverage you are purchasing related to the mid-level providers.
Most insurance companies cover mid-level providers as “additional insureds” rather than provide them separate polices and coverage limits precisely because they are physician extenders rather than truly independent practitioners.
Conclusions
Emergency physicians need to understand that mid-level providers essentially function as extenders of their own practice, and as such, they generally remain responsible and liable for whatever the mid-level providers do in the ED. Knowledge of the PA’s or NP’s scope of privileges, an understanding of the relevant supervisory rules and regulations, effective communication, and concrete supervision are necessary to provide quality care and to avoid malpractice litigation.
References
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Robert A. Bitterman, MD, JD, FACEP EPIC Board of Governors Claims Management Committee Chair |
Documenting conversations with an admitting physician
Question
How much of my conversation with an admitting physician should I document in the ED medical record?
Answer
Everything! Well, almost everything. The purpose of the discussion with the admitting physician is twofold: First, to transfer responsibility for the patient from the emergency physician to the admitting physician; and second, to provide sufficient clinical information necessary for the admitting physician to appropriately care for the patient from that point forward. Your job is to ensure the patient's safety, and consequently avoid liability, by effectively communicating to the admitting physician the relevant clinical data, your working diagnosis, and any concerns you harbor regarding the patient's condition. (See Table 1.)
Transfer of Responsibility
Document the time you initiated a call to the admitting physician and the time you discussed the case with him or her. You want to create a bright line, with no uncertainty, of the time you transferred responsibility and liability for the patient. You should place a note in the medical record stating, "Patient's care transferred to Dr. Smith at 1500 hours."
(Incidentally, this applies equally for 'change of shift turnovers' from one emergency physician to another emergency physician.)
It doesn't matter if the transfer occurs by phone or to the admitting physician at the bedside in the ED. It is also irrelevant if the patient remains boarded in the ED awaiting an inpatient bed; it is NOT true that emergency physicians remain responsible or liable for any patient still physically present in the ED. The admitting physician's hospital privileges and duty to the patient do not magically start after the patient leaves the confines of the ED; they begin when he accepts the patient from the emergency physician. (If the emergency physicians write the initial admitting orders this becomes a much more complicated issue – writing admitting orders will be addressed in a later issue of The EPIC Report.)
The phone conversation with the admitting physician should also end with a mutual understanding of when the admitting physician will come to the ED or the hospital to see the patient. If a patient with routine pneumonia can be started on antibiotics and seen in the morning, then morning is a reasonable time for the admitting physician to be expected to come into the hospital to see the patient on the inpatient service. If the patient needs to go to the operating room ASAP, then ASAP is the time the physician should be expected to appear in the ED to assume care of the patient. Federal regulations require that the expected “response time” for an on-call physician to come to the ED when asked to see a patient with an emergency condition must be written down, in minutes, in the hospital rules and regulations or medical staff by-laws. [42 CRF 489.24; CMS Interpretive Guidelines, May 2004] State law also may govern an on-call physician's response time. Missouri, for example, requires the on-call physician to come to the ED within 30 minutes in certain circumstances. [MO. 19 C.S.R.30-20.021]
You want to avoid the scenario, for example, where you call the surgeon for a patient with acute appendicitis, he says he's on his way, but doesn't show up until many hours later and then after examining the patient screams to the family, "Why didn’t the ED call me much sooner!"
If an admitting physician or surgeon gives you grief about agreeing to come to the ED within a set time frame, then document your request and the supporting facts in the ED record. Failure to consult the patient to a general surgeon in a timely fashion is a very common source of litigation against emergency physicians in appendicitis cases (or any other serious disease case); you want a clear record that you didn't cause the delay. Don't make inflammatory comments about the admitting or on-call physician in the record, but your notes should accurately reflect the conversation, your concerns, and the subsequent course of events. These are high risk cases and litigation frequently follows if the patient's appendix ruptures and leads to complications or an adverse outcome, especially if after a prolonged stay in the ED without diagnostic and/or surgical intervention.
As an emergency physician, you must be willing to take heat from the “difficult to deal with” or “incompetent” admitting or on-call physician on behalf of your patients.
Communication of Clinical Information
You want the admitting physician to appreciate the patient's clinical status at the time of the call, and assure that his understanding coincides with your impression of the patient's condition. Be sure to relate your diagnosis, any significant abnormal physical findings, and your clinical impression of the seriousness of the patient's condition. You should also inform the admitting physician of any abnormal laboratory or x-ray studies. The scenario you want to avoid here is an assertion by the admitting physician such as, "If the ED had only told me the glucose was 1,000 and the arterial pH 6.9, I'd have gone to the ED immediately to see the patient."
The medical record should reflect the full scope of your conversation about the patient. Document that you gave to the admitting physician the diagnosis, any abnormal physical findings and the current condition of the patient. Also, specifically document which lab and x-ray data were provided to the admitting physician. Placing in the ED medical record that "told glucose over a thousand and pH 6.9" or "told potassium 8.5" not only eliminates misunderstandings and minimizes liability of the emergency physician, it also enhances patient safety.
Sample documentation of conversation with an admitting physician
Case discussed and care transferred to Dr. Jones at 1600 hours. Explained diagnosis of COPD/pneumonia, T 103, RR 28, pulse ox 90% on room air/95% on 2L, WBC 19,000, and patchy RLL infiltrate. Patient alert/comfortable/stable now, BP and HR fine, and first dose of antibiotics given in ED. Dr. Jones gave verbal admitting orders to the nurse and said he'd be at the hospital within an hour to see the patient.
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Table 1. Key Elements of Documentation of Discussion with Admitting Physician.
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Question
How do I correct an error in the ED medical record without it appearing as if I'm surreptitiously changing the facts regarding the patient's care?
Answer
Carefully, very carefully. Erroneous or mistaken entries into the ED record happen frequently, but corrections to the medical record must avoid any possible hint of impropriety. Many malpractice cases have been lost because physicians lose their heads in the heat of the moment after medical misadventures/poor outcomes or after litigation has been initiated. Juries generally construe any improper alteration of the medical record as a deliberate attempt by the physician to conceal negligent acts.
In some states, alteration or destruction of a medical record is a crime subject to a fine and/or prison time. (For example, intentional alteration of a medical record is a misdemeanor in California [Cal Penal Code 471.5] and a felony in Michigan [MCLA 750.492a)]. The state medical board could also suspend or revoke the physician's license for fraudulently altering a medical record.
Additionally, it may open the door to an award of punitive damages in the malpractice suit, which is not covered by many malpractice insurance carriers (including EPIC). Most states, as a matter of public policy, typically forbid insurance coverage for civil monetary penalties (fines) or for punitive damages, which are intended to punish the defendant rather than compensate the injured party.
The acceptable process to correct any error in the record should be spelled out in written hospital policy. A typical, acceptable procedure is outlined in Table 2A below.
Furthermore, corrections should be made as soon as possible after an error is discovered. It simply looks self-serving and unreliable to a jury if done after the physician learns the patient suffered an adverse outcome or hears about possible litigation. If you send a patient home who shortly afterwards comes back to the ED dead, do NOT add, change, remove, or touch the original record in any way! Even if you were negligent, your attorney may be able to raise other defenses on your behalf, such as causation, but such defenses will likely be futile if you inappropriately altered the record.
Strategies to avoid risk in correcting a medical record are included in Table 2B.
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Table 2. Correctly Correcting Errors in the ED Medical Record.
A. The proper procedure to correct the error in the ED
B. Risk management suggestions
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$2.2 Million Verdict: Failure of ER Physician to Diagnose Unstable Angina
Lack of documentation a key factor in verdict
The following case was provided by Zarin’s Emergency Department Liability Alert (www.zarins.com). A full PDF sample issue is available on their website and subscribers are eligible for up to 12 hours AMA PRA Category 1 credit based upon actual malpractice cases.
Case Summary
The defendants in this medical malpractice action were the emergency room physician who treated the 51-year-old decedent as well as the professional association which employed the physician. The plaintiff claimed that the defendant physician failed to diagnose unstable angina when the decedent presented to the emergency room, resulting in the decedent's death the following morning from a massive heart attack. The defendants argued that the decedent was properly diagnosed with stable angina in the emergency room and that his death could not have been prevented.
Case Details
The decedent presented to the hospital emergency room at 8:58 P.M. on February 3, 1997, with complaints of chest pain radiating into his left arm. He reported that he had been at Busch Gardens earlier and his heart medication had become wet during one of the theme park rides. He sought a refill of the medication known as Isordil. The decedent had a medical history of having undergone two prior angioplasties four years earlier with placement of a coronary stent. He was also a cigarette smoker with high cholesterol.
The decedent was initially seen by a triage nurse and an admitting nurse who both documented his complaints of chest pain which had been present for two or three hours. At approximately 9:30 P.M., the decedent was examined by the defendant physician who contended that the decedent no longer had complaints of chest pain at that time. The decedent was diagnosed with stable angina and discharged from the hospital with a prescription for Isordil at approximately 11:20 P.M.
Following discharge, the decedent was unable to fill the prescription at any of the local pharmacies. He returned to the hospital to complain. The defendant and the hospital nurse discussed the fact and the defendant contended that the hospital nurse was asked to obtain Isordil for the decedent. The defendant then returned to his emergency room duties and had no further contact with the decedent. The hospital nurse apparently did not obtain the medication for the decedent. The decedent eventually left the hospital and returned to his hotel room where he went to sleep at approximately 3 A.M. At 6:30 A.M., the decedent suffered a massive heart attack and was pronounced dead on arrival at the hospital. Autopsy revealed massive occlusions of the left main coronary artery and right coronary artery.
The plaintiff's medical experts testified that the decedent clearly suffered from unstable angina which was not diagnosed by the defendant and which suggested a new physiologic process had begun, typically a ruptured plaque which causes a partial blockage of the coronary artery. The plaintiff's cardiologist testified that the decedent should have been admitted to the hospital on a regimen of IV heparin, IV nitroglycerin, beta blockers and aspirin. It was this expert's opinion that had the regimen been instituted, the decedent more probably than not would have survived.
The decedent had been married for 25 years. He was divorced and reunited with his former wife, but the couple had not remarried. The decedent was survived by two sons ages 17 and 19 at the time of his death. He was a resident of Buenos Aires, Argentina and was self-employed in the clothing import business. The plaintiff did not claim loss of net accumulations to the decedent's estate. Pursuant to a child support agreement, the decedent paid $2,500 per month to each of his sons and was obligated to do so until they reached 21 years of age.
The defendant physician argued that the decedent's chest pain had resolved by the time of his examination and that the diagnosis of stable angina was appropriate. The defendant also testified that the decedent reported his chest pain was intermittent and similar in pattern to the pain he had experienced in the past and that the plaintiff merely wanted a refill of his medication. Nevertheless, the defendant contended that he performed a series of diagnostic tests, including EKG and CK enzyme tests, all of which were normal. In addition, the defendant argued that the decedent was not nauseous, diaphoretic or having any respiratory complications and remained pain free for the next two hours. At that point, the defendant contended that he offered to admit the decedent for observation purposes, but indicated that admission was not mandatory. The decedent declined admission and requested a prescription for Isordil, according to the defendant's testimony.
The defendant's emergency medicine expert testified that the diagnosis of stable angina was proper in light of the decedent's diagnostic test results, his statement that he experienced a similar chest pain pattern in the past and the fact that the chest pain resolved without medical intervention. Most unstable angina requires medical intervention for resolution to occur, according to the defendant's expert. The defendants' cardiology expert stated that in light of the decedent's underlying pathologic condition, initiation of the regimen suggested by the plaintiff's expert would not have saved his life.
The jury awarded the plaintiff $2,265,567 which included $3,567 in funeral expenses, $80,000 in past and future loss of support and services for the 19-year-old son, $182,000 in past and future loss of support and services for the 17-year-old son and $1 million in pain and suffering for each of the two surviving sons.
Medical Liability Analysis
Key evidence resulting in a plaintiff's award in this medical malpractice action may have come in the form of a lack of documentation on the part of the defendant physician. Although the defendant testified that he relied on a statement made by the decedent that his chest pain was similar to past pain patterns, this statement could not be found in the medical record. The plaintiff argued that such an assertion, especially when used as the basis for diagnosis, would have been documented and that the lack of such documentation was felt to be crucial to the plaintiff's establishment of liability. The defendant pointed to evidence that the decedent's chest pain had resolved by the time the decedent was seen by the defendant physician and this point was not disputed by the plaintiff. The defendant himself acknowledged that if the decedent was suffering from unstable angina, he would have admitted him to the hospital. However, the defense maintained that unstable angina was not present at the time the decedent was examined in the emergency room. Much of the plaintiff's presentation involved educating the jury as to the difference between stable and unstable angina and why evidence pointed to an unstable angina requiring hospitalization.
Although the decedent had been married for 25 years, he was divorced and reunited with his wife, but not remarried. Thus, the wife did not qualify as a survivor under the wrongful death act and was not entitled to recovery. The defense initially alleged comparative negligence as evidence showed that the decedent failed to have a prescription filled. However, the Court directed a verdict for the plaintiff on the comparative negligence defense at the close of evidence. The defendants offered $300,000 to settle the case, but withdrew the offer before trial. The plaintiff filed two proposals for settlement in the amount of $925,000 and $500,000 and will petition for attorneys’ fees.
Risk Management Advisory
In this case, apparently an important part of the medical history which the defendant physician said he obtained, particularly that the pain the patient felt was intermittent and was similar to chest pain in past pain patterns where the pain had resolved without other symptomatology or apparent effects, were, in fact, not recorded within the medical record. Practitioners can well be reminded by this case that the failure to record an important or significant aspect of a patient's history completely and in detail, particularly where the history is significant in contributing to a correct diagnosis, can create the inference in a subsequent medical malpractice action that such a significant history had not, in fact, been taken. Histories which are relevant to the diagnoses determinations are usually recorded and the failure to record such significant histories or such significant portions of the history can create the clear inference that such a history was never given if it is usual and customary to record such histories if they had, in fact, been given. Furthermore, the failure to record relevant portions of a history or, stated another way, the failure to take a complete and detailed relevant history creates the impression of a physician who is less than meticulous and less than careful.
In addition, an attempt to orally correct an inadequate history years later in a medical malpractice litigation and thereby contend that a history was actually given, but not recorded despite the fact that it is normally recorded can impair not only the credibility of the defendant physician recording such history, but also the credibility of the entire defense. Total, detailed and complete recording of all relevant medical history within the medical chart can go a long way in avoiding these liability complications that can occur from a failure to adequately record such history.
Expert
Plaintiff's cardiologist: Andy Taussig from Orlando. Plaintiff's emergency medicine expert: Henry Smoak from Indian Rocks. Plaintiff's pathologist: William Anderson from Orlando. Plaintiff's economist: Fred Raffa from Orlando. Defendant's cardiologist: Kim Klancke from Daytona Beach. Defendant's emergency medicine expert: George Podgorny from Winston-Salem, N.C.
Reference
Osceola County, Fla. Pltf: Litvin. Case no. 98-ON0662; Judge John Adams, 1-21-00. Attorneys for plaintiff: Thomas A. Culmo of Miami and Dennis A. Koltun of Miami; Attorney for defendants: Richard S. Womble of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. in Orlando.
Carbon Monoxide Poisoning: Case and Clinical Pearls
Jennifer Aviles, M.D.
A 22-year-old pregnant Somalian woman presented to the emergency department at 00:00 complaining of ~1 hour of headache and dizziness.
She complained of developing a severe throbbing frontal “headache and dizziness” immediately after getting up to go to the bathroom. Other associated symptoms included near syncope, palpitations, nausea, vomiting, left leg numbness and “sparkling lights” in front of her eyes. The patient reported a recent upper respiratory infection and similar headaches in the past. There was no history of photophobia, fever, or rash. The patient was 13 ½ weeks pregnant (G1 P0).
Others in the patient’s family also complained of headache, but the patient sought medical attention because her symptoms were more severe. The patient reported charcoal use inside the home. On further questioning, it was discovered that the charcoal was inside an “African heater.” The patient and her husband did not know the country of the heater’s origin but these heaters are made in Africa and used there for heat but also imported and sold in the US. The family had purchased their charcoal heater locally.
The patient denied any past medical or surgical history, and prenatal vitamins were her only medication. She did not smoke, drink alcohol, or use any illicit drugs. Her family history and review of systems were otherwise non-contributory except for a brother with “migraine headaches.”
Physical Exam:
Vital signs: BP: 116/69 HR: 101 RR: 16 T: 98.2 (oral) O2 Saturation: 98%
She appeared well, in no acute distress; there was no evidence of trauma
Lungs were clear to auscultation; her cardiovascular exam showed tachycardia with a 3/6 SEM. Her abdomen was soft, and there were no rashes noted; her neurologic exam did not show any nystagmus with a normal funduscopic exam without papilledema. Extraocular movements were intact and PERRLA. Cranial nerves II-XII were grossly intact; her speech was normal, and gait including heels, toes, and tandem were normal; there was no drift and cross axial finger to nose was normal.
ED course:
Pt received intravenous fluids and metoclopramide for nausea. She was treated with 100% O2 non-rebreather mask. Her carboxyhemoglobin level was 18.5%. She was transferred for hyperbaric oxygen therapy (HBOT).
Clinical Pearls:
Recommended Reading
Kao LW, Nanagas KA. Carbon monoxide poisoning. Emerg Med Clin North Am. 2004 Nov;22(4):985-1018.
Robert A. Bitterman, MD, JD, FACEP
EPIC Board of Governors
Claims Management Committee Chair
Health Affairs Study Finds US Physicians Lag Behind Other Countries in Use of Information Technology and Quality Initiatives.
The 2006 Commonwealth Fund/Harris Interactive study found that only 28% of US physicians and 23% of Canadian physician use electronic medical records, compared to 98% of physicians in the Netherlands, 92% in New Zealand, 89% in the United Kingdom, and 79% in Australia.
US and Canadian doctors also markedly trailed other countries in the use of computerized alert systems to flag potentially harmful drug dosages or interactions: around 20% in North America compared to 40% to 90% in Europe.
(Source: American Health Lawyers Association)
CMS Issues Final Patients' Rights Rule on Use of Restraints and Seclusion.
On December 8, 2006 the Centers for Medicare & Medicaid Services published a final rule on patients' rights that all Medicare and Medicaid participating hospitals and EDs must follow. The rule also applies to adult and pediatric psychiatric, rehabilitation, and alcohol/drug treatment facilities. It requires more rigorous training for health care staff that use restraints or seclusion to control violent or self-destructive behavior. CMS also added trained registered nurses and physician assistants to the category of practitioners who may conduct the "face-to-face" evaluation required within one hour of a patient being restrained or secluded. However, if a RN or PA performs the evaluation they must consult a physician or other licensed independent practitioner as soon as possible.
The new regulations also require hospitals to provide patients and family members greater notice of their rights, and impose stricter standards for when a facility must report restraint- or seclusion- associated deaths.
Educational Programs Aim to Help Doctors Learn to Say, “I’m Sorry”!
1. Crico/RMF, the patient safety and medical malpractice company affiliated with Harvard Medical School, has created a DVD called When Things Go Wrong: Voice of Patients and Families. The program attempts to help doctors better understand the impact of medical errors, how to prevent errors, and the importance of an early, sincere apology to patients and their families when things go wrong.
2. The Sorry Works! Coalition (www.sorryworks.net), a non-profit organization of physicians, attorneys, insurers, hospital administrators, patients, and patient advocates, works with state agencies and insurance companies to promote full disclosure of medical errors and an apology as a method to decrease malpractice litigation.
Sen. Ensign Reintroduces Medical Malpractice Bill That Would Cap Non-Economic Damages and Limit Attorneys' Fees.
Sen. John Ensign (R-Nev.) reintroduced legislation (S 243) he sponsored in the last Congress that would limit non-economic damages in medical malpractice lawsuits to $750,000. The bill would cap non-economic damages at $250,000 per provider with a total limit of $750,000 and would limit attorneys' fees. The legislation would not limit economic damages. The bill is modeled after the successful Texas law that markedly reduced medical malpractice insurance premiums and improved patients' access to care in that state. Ensign said in a news release that "Medical liability reform works, and it's turning the tide against frivolous lawsuits and outrageous jury awards."
AHA Hospital Survey Finds Increase in ED Visits, Uncompensated Care in 2005
The American Hospital Association's (AHA) annual survey of more than 5,000 hospitals found that the number of ED visits rose to 114.7 million in 2005, up from 112.6 million ED visits in 2004. The number is up a total of 64% since 1990, despite the number of EDs declining by about 15% over the same period. Over half of all hospitals reported that their EDs are "at" or "over" capacity. The total inpatient visits in 2005 remained constant at 35.2 million.
The survey also showed that our nation's hospitals provided $28.8 billion in uncompensated care in 2005, up from $26.9 billion in 2004 and $23.5 billion in 2000.
(The numbers include charity care and bad debt, valued at the cost to the hospital of the services provided.)
The "AHA Hospital Statistics - 2007"survey results are published by Health Forum, an AHA affiliate, and are available at www.ahadata.com. It is a comprehensive guide on trends in hospitals, facilities, and patient services. Single copies are $175 for AHA members and $235 for non-members.
Annual U.S. Health Report Provides Plethora of Data on Health Care in America.
The Health, United States, 2006 report from the National Center for Health Statistics (NCHS) provides trend data on ambulatory care, inpatient care, determinants and measures of health, health personnel, health facilities, national and state health expenditures, health care coverage, and major federal programs. Each year the report features an accompanying chartbook with a special focus; the 2006 chartbook focuses on pain (available on the NCHS Web site). The US Health Report from the CDC is available on the CDC web site at http://www.cdc.gov/nchs/hus.htm.
| Conference | Location | Date |
| AAEM | Las Vegas, NV | March 12 – 14 |
| AAUCM | Orlando, FL | April 11 – 14 |
| TX ACEP Annual Meeting | Irving, TX | April 12 – 15 |
| AZ ACEP | Tucson, AZ | April 15 – 19 |
| WA ACEP & WA ENA | Vancouver, BC | April 15 – 18 |
| IN ACEP | Indianapolis, IN | April 16 – 17 |
| SAEM | Chicago, IL | May 16 – 19 |
| SHM | Dallas, TX | May 23 – 25 |
| GA ACEP | Hilton Head, SC | June 8 – 11 |
| AL/TN ACEP | Sandestin, FL | June 10 – 14 |
| NC ACEP | Myrtle Beach, SC | June 15 – 17 |
| NY ACEP | Lake George, NY | July 8 – 10 |
| MI ACEP | Mackinac Island, MI | July 15 – 18 |
| OH ACEP (Summer Symposium) | Sandusky, OH | July 26 – 27 |
| ACEP SA | Seattle WA | October 8 – 11 |
| KY ACEP | Churchill Downs, KY | November 16 |
Board of Governors & Committee Members
EPIC RRG Board of Governors
Victor Miranda, MD, Chairman
Robert A. Bitterman, MD, JD, FACEP
Edward Boudreau, MD, FACEP
Michael C. Choo, MD, FACEP, FAAEM
Robert G. Ripley, MD, FACEP
Bartholomew G. Nyhan, MBA, CLU
EPIC RRG Committee Members
Underwriting and Marketing Committee
Christian Burke, MD, FACEP, Chair
Ameet Deshmukh, MD, FACEP, Co-Chair
Bartholomew G. Nyhan, MBA, CLU
Sean Fulton, MD, FACEP
Frank Kaeberlein, MD, FACEP
Mark Menadue, DO, FACEP
Christopher Pund, MD, FACEP
Jon Vargas, MD, FACEP
Edward Boudreau, DO, FACEP, FAAEM
Finance and Investment Committee
Robert Jasper, MD, FACEP, Chair
Jay Taylor, MD, FACEP, Co-Chair
Bartholomew G. Nyhan, MBA, CLU
Michael Choo, MD, FACEP, FAAEM
Paul Fleming, MD, FACEP
Mark Jacoby, CPA
Karen Massey, MHA, CMPE, CMSM
Audit Committee
Mark VanMeter, Chair
Robert A. Bitterman, MD, JD, FACEP
Patient Safety and Risk Management Committee
Jonathan E. Laine, MD, FACEP, Chair
Christopher Goliver, MD, FACEP, Co-Chair
Brian Robb, DO, FACEP
Mag Greig
Robert Orosz, DO, FACEP
Patrick Johannes, MD, FACEP
Scott Welden, MD, FACEP
Russell Rudy, MD, FACEP
Randal D. Bensen, MD, FACEP
Claims Management Committee
Robert Bitterman, MD, JD, FACEP, Chair
Dennis Block, DO, FACEP, Co-Chair
George Dengler, DO, FACEP
Thomas Gutwein, MD, FACEP
James Foster, MD, FACEP
Richard Garrison, MD, FACEP
Jeff Wright, MD, FACEP
Emergency Department Information Systems
Frank Orth, DO, FACEP, Chair
John M. Strayer, MD, FACEP, Co-Chair
EPIC Insurance Managers
Senior Management Team
Graham T. Billingham, MD FACEP, President & Chief Executive Officer
James T. McMahon, Senior Vice President & Chief Operating Officer
Douglas D. Wisman, Senior Vice President & Chief Financial Officer
Mick Parmentier, Vice President, Claims
Grace Crisostomo, Director of Underwriting
Shawn Mountcastle, Director of Marketing
Patient Safety & Risk Solutions Management Team
(www.psrisk.com, (888) 305-4624)
Michelle Hoppes, RN, MS, AHRMQR, DFASHRM, President & CEO
Jeanie Taylor, RN, BSN, MS, Director
Jennifer Terhorst, Operations Coordinator
The EPIC Report is published quarterly by EPIC Insurance Managers for members of the physician-owned Emergency Physicians Insurance Company Risk Retention Group (EPIC). Letters to the editor and articles, to be edited and published at the editor’s discretion, are welcome. Views expressed in letters to the editor are those of the writer and do not necessarily reflect the opinion or official policy of the EPIC RRG or EPIC Insurance Managers. Please sign letters and address them to the editor or send them via email to editor@epicrrg.com.
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Editor: Michelle Hoppes
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EPIC Insurance Managers publishes The EPIC Report to inform emergency medicine member groups insured by the Emergency Physicians Insurance Company Risk Retention Group (EPIC) on issues pertinent to emergency medicine and professional liability insurance. Any recommendations found in the newsletter are intended as guidelines, not standards of care, and do not ensure successful outcomes. Any guidelines address principles of the practice of emergency medicine, and are not inclusive of all proper methods of care nor exclusive of other appropriate methods. Treatment decisions must be made by individual health care providers within the context of specific situations and in accordance with the laws of the jurisdiction in which the care is provided.
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