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A patient’s history frequently becomes an issue in malpractice claims against emergency physicians (EPs), says Phillip B. Toutant, Esq., an attorney in the Southfield, MI, office of The Health Law Partners. Toutant was involved in a recent case in which a young woman was admitted through an ED with a complaint of diffuse abdominal pain, nausea, and vomiting.
"She had a complicated medical history, including chronic pancreatitis, and a recent history of eating spicy food, which had caused her abdominal pain in the past," says Toutant.
Additionally, her labs revealed leukocytosis. Her symptoms were evaluated, and she was medicated and monitored for a number of hours and then discharged.
"She did not receive an abdominal CT or other imaging studies," says Toutant. "Two days later, she returned with a ruptured appendix, resulting in sepsis and a stay in the intensive care unit over 30 days."
The ED medical records described only "diffuse abdominal pain." "This became relevant,
as the patient’s Modified Alvarado Score was dispositive of whether the patient was to be admitted, or discharged, given that no imaging studies were performed," says Toutant.
Using Modified Alvarado, the patient had nausea/vomiting (one point), and leukocytosis (two points), amounting to a score of three points.
If the patient’s history included a complaint of pain in the right iliac fossa, she would have had a Modified Alvarado Score of four, and should have been admitted. There was no evidence of this complaint in the patient’s history and physical or the ED nursing notes.
"Nonetheless, when the patient was deposed, she claimed that when she was in the ED, she complained of pain in the right iliac fossa, despite this being contrary to the clinician’s contemporaneous charting of just diffuse abdominal pain,’" says Toutant.
The EP who evaluated the patient accurately documented the patient’s description of her pain. "However, one significant factor that would have improved the physician’s defense would have been if he specifically documented the absence of complaints in the patient’s history," says Toutant —such as "no right iliac fossa pain" and "no fever." "This would have made it substantially easier to prove the patient had not made such a complaint," he says.
Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago, recently handled a case in which the patient claimed he stated clearly to the EP that he had suffered a fractured clavicle that occurred during a recent orthopedic procedure, and that he was seeking medical attention because of his increased pain level.
However, the ED chart stated that the patient had fallen while running at a beach. "Those facts were completely different than what had been given by the patient in the ED or the facts surrounding his injured clavicle," says Kreisman. "The difference in his care may have been insignificant, but the risk remained that his treatment plan may have been altered given the mechanism of his true injury."
In this case, the inaccurate ED documentation could affect the outcome of future litigation, in that the patient’s injury was caused by a surgeon and not by a fall.
In another case, a patient reported that he had fractured his ankle after falling in a hole in his basement, but the EP recorded his injury as occurring when the patient was running in a recent charity race.
"The obvious way of eliminating possible claims of negligence because of a patient’s history would be to accurately record the history," says Kreisman. "Many ED physicians dictate their entries shortly after they render their care."
The sooner the documentation is done, the more likely the entries will accurately reflect the care and treatment given to the patient, says Kreisman, including the history, which will most likely be later reviewed by another practitioner who relies on the accuracy of the chart for further treatment.
"ED physicians can protect themselves from potential liability by insisting that the chart correctly reflect the history of the patient, the care given, and the medical providers who offered that care," says Kreisman.
If patients don’t give an accurate history, the EP’s differential "becomes distracted. The patient’s contributory negligence in not disclosing the information would become critically important to the defense," says Julian Rivera, JD, a partner at Husch Blackwell in Austin, TX.
Rivera says that giving patients the opportunity to answer questions in writing, whether electronically or on paper, can make malpractice claims more defensible.
"Any opportunity for the patient to input the data themselves helps, because that shows that it wasn’t the mistake of the EP in misunderstanding the patient, but the patient’s own self-report," he explains.
For instance, some medical record systems allow patients to add information to the record in their own handwriting or directly into the electronic medical record.
"Facts entered into the record by the patient themselves, rather than by a provider or scribe, are compelling and less subject to manipulation by lawyers who try to attack an EP later," says Rivera.
The EP’s efforts to gather a patient’s history must be "reasonable" and based on good professional judgment, emphasizes Rivera.
"EPs who want to reduce their risk need to engage their leadership and technology teams to maximize the effectiveness of the EPs’ history information gathering," says Rivera, adding that the lack of interoperability of information technology systems between hospital systems complicates data gathering.
Juries understand that the EP has to rely on patient trustworthiness and candor, adds Rivera.
"Believability and trust are incredibly important to juries," he says. "Examples in the contemporaneous chart of the patient’s lack of candor or the patient’s false statements can completely undermine cases launched against the EP."
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