UMEM Educational Pearls - Med-Legal

Chest pain is a very high risk chief complaint in emergency medicine. And although we are told by the experts what we should write on the chart, we often struggle with finding time to do so.

Given that we can't pick up every MI, dissection, and PE, what things can we document in the chart that prove we are thorough and that we have thought about a diagnosis? And how can we document a "protective thought process" without taking too much time to do so?

Consider documenting these on your chest pain charts:

• Risk factors present/absent for ACS/MI, dissection, and PE
• Good family history
• Don't be sloppy with the history and physical exam. Doesn't matter if they help or not. Attorneys will have a field day discussing how sloppy the history and exam was. If the history and physical examination are bad get out the checkbook. 
• Pulses in upper and lower extremity
• Any leg swelling?
• Any diastolic murmur?

Documenting key pertinent negative comments in the chart shows that you are thinking (and considering MI, Aortic Dissection, and PE), and whenever this can be shown in a chart, there is more ammunition for the defense attorney. 

Beware of your online contributions, they can come back to hurt you in legal settings. You must remember that there is a digital trail of everything you post online. Discovery rules vary state to state. It is best to practice save surfing. What you may perceive as paranoia is really just good practice.

The following guidelines apply to:

• Email
• Online chats: google chat, IRC, AOL AIM, MSN
• Social networks: Facebook, Mypage, Medical networking pages, etc
• Any online medium, forum, discussion site

General guidelines

• Do not reference any patient cases with dates (regardless of hipaa identifiers)
• Do not provide any medical advice for specific cases online
  • Add a disclaimer for general advice (see the disclaimers for these pearls as example)
• Do not discuss any potential or ongoing legal cases with peers PERIOD, especially electronic methods with a record.
• Do not document ethically questionable behavior online
  • ie: "that time in vegas when you got sooooo drunk"

Assume that whenever you hit send, your message will be available to a plaintiff attorney who will twist it to suit his/her needs. The only potential exception is direct email communication to your personal legal counsel. Please verify that local laws protect this form of communication before making an assumption of privacy.

[This pearl is a review of published general recommendations on privacy practices and should not be interpreted as, or replace competent legal advice.]

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Documentation of the Chest Pain Patient

Chest pain is a high risk entity in emergency medicine. And since many patients we see with chest pain are eventually discharged, we should consider what our charts should look like should we discharge a patient who has a missed life-threatening diagnosis. In other words, what would an attorney look for?

Considerations for the chart:

• Consider documenting some type of medical decision making in the chart. What were you thinking? Why didn't you think the patient needed cardiac enzymes, a CT, or admission? The chart should support your decision to send the patient home.
• Document a thorough history...enough said
• Document risk factors for the deadliy causes of chest pain (ACS, PE, dissection, etc.). This is frequently missing on charts.
• Consider documenting important, pertinent negative "chest pain physical exam findings," such as a normal leg exam (frequently missing on missed PE charts), no murmurs, equal pulses. Comments like this in the chart prove that you were thinking about a differential diagnosis. A question to ask yourself is, "Does my physical exam look like I was searching for the bad players of chest pain?"

There is clearly no way you can document everything on a chest pain chart. However, there are some pretty important things that should be on the chart.

Some key things to consider documenting:

• Why you did not work up someone's chest pain, i.e. what would you want your chart to look like if the patient went home to have an MI and an attorney looked at your chart? You don't think a ECG is warranted? Fine. Just document why. The chart tells all.
• Documentation of risk factors for the three deadly causes of chest pain: ACS/MI, aortic dissection, and PE. Documenting these is proof you were thinking about a differential diagnosis.
• Documenting key chest pain physical exam findings and pertinent negatives-Documenting "legs normal, no DVT" is proof you were thinking about PE the whole time, even if it isn't in your medical decision making section. Writing "no diastolic murmur" is proof you thought about aortic dissection. These kinds of documentation pearls will serve to make the chart defensible. Obviously, you should perform this part of the exam and not just write it on the chart.
• Documentation of why you didn't go after ACS, aortic dissection, or PE. We will all make mistakes in our careers. And remember, we can't diagnose every MI, dissection, and PE. But, remember that you want your chart to show that you thought about these bad boys and WHY you didn't go after them. What is frequently missing on charts of missed MI, AD, and PE is exactly this!

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So you are getting sued.  Here are some tips to handle your Deposition:

 

• Don’t bring any documents
• You may charge an expert witness fee if you are not a party and the deposing attorney asks your opinion, rather than just asking you to testify about facts.
• Say “yes” or “no,” rather than making gestures.
• Absolute honesty is the best policy.
• Listen carefully and only answer what is asked.  Don’t try to educate the deposing attorney.
• Don’t argue or interrupt
• Nothing is “authoritative.”
• Pause before answering
• Avoid saying “always” or “never.”
• Be brief.  Long-winded answers will get you in trouble.
• Rather than guessing exactly what you did, its okay to testify what you do “as a matter of habit.”
• Don’t exaggerate, over-emphasize, or speak in absolute terms.
• Don’t answer the same question twice.
• Don’t let the plaintiff attorney refer to you as an employee if you are an independent contractor.
• Don’t agree with the inane statement “if it wasn’t documented it wasn’t done.”

Courtesy of Larry Weiss, MD, JD

Disclaimer: This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice.The speaker provides this information only for Continuing Medical Education purposes.

Fraud (PATH audits)    (PATH = physicians at teaching hospitals)

• As a general rule, faculty may not bill Medicare for the work of residents.
• Faculty may bill for their own work, and may repeat a resident examination if necessary.
• To appropriately bill under PATH audit guidelines, faculty may make reference to a resident’s history, may simply document the variance between their exam and the resident’s exam, and should document medical decision making.
• Faculty may bill for a procedure if:
  • faculty performs the procedure
  • faculty was present for the entire procedure
  • faculty was present for the key portion of the procedure
  • faculty actively assisted the resident in performance of the procedure.

So for the residents, a lot of attendings will want to be present when you do a procedure, not because they think you will need their assistance, but because, procedures are a large revenue stream that can be lost if the attending is not present.

Thanks to Larry Weiss, MD, JD

Disclaimer: This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice.The speaker provides this information only for Continuing Medical Education purposes.

EMTALA (Part Two)

• Hospitals may not delay screening examinations to inquire about payment.
• Emergency departments should not contact HMOs before completion of the screening examinations and stabilizing treatment.
• Triage does not constitute a MSE.
• For the purposes of EMTALA, a patient has come to the ED when he arrives on hospital property.
• EMTALA does not apply to offsite clinics unless (1) the clinic is licensed as an emergency department, (2) the hospital advertises the clinic as an ED, or (3) during the preceding year, 1/3 of all outpatient visits were for EMCs.
• EMTALA does not apply to inpatients, unless the hospital admitted the patient in bad faith.
• Since Nov. 2003, a specialty represented at the hospital does not always have to be on call.

Thanks to Larry Weiss, MD, JD

Disclaimer: This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice.The speaker provides this information only for Continuing Medical Education purposes.

EMTALA (Part One):

• The three general duties created by EMTALA are to provide (1) an appropriate medical screening examination (MSE), (2) stabilizing care, and (3) appropriate transfer of unstable patients.
• An appropriate MSE is an exam comparable to similarly situated patients (ie: non-discrimatory).
• Patients are stable if it is reasonably likely they will not deteriorate during a transfer.
• The duty to stabilize arises only if the physician diagnoses an emergency medical condition (EMC).
• Once stabilized, the hospital and physician have fulfilled their duties under EMTALA.
• The transfer criteria only apply to unstable patients.
• Receiving hospitals may get fined if they fail to report an inappropriate transfer.
• A hospital with specialized capabilities must accept appropriate transfers if it has the capacity to care for the patient.

Thanks to Larry Weiss, MD, JD

Disclaimer: This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice.The speaker provides this information only for Continuing Medical Education purposes.

Abdominal pain can be very confusing. Occasionally, serious etiologies may masquarade as benign complaints. Always consider the following pitfalls when addressing abdominal complaints.

• Be aware of extra-abdominal disease processes presenting as abdominal pain
  • AMI, pneumonia, pelvic diesases
• If you suspect appendicitis - than pursue the diagnosis
  • Do not delay notification of surgeon, and request consultation early
    • It is reasonable for them to examine the patient without CT results
    • It is not reasonable to withhold pain medications until they see the patient
  • Time all calls, and document all discussions with consultant name
• UTI and gastroenteritis should be considered diagnoses of exclusion. Be wary of using, if any red flags exist
  
  • fever, hypotension, blood in stool, weight loss, abdominal tenderness
• Unless the diagnosis/etiology is clearly not pelvic in origin, always do a pelvic exam in a women
• Always consider, and document your consideration of testicular and ovarian torsion
• In a septic patient with UTI, consider obstructing pyelonephritis.
  • Patients with a kidney stone and obstructing pyelo will not get better unless the stone is removed. CT for stones, prior to dispo.
• Consider vascular etiologies in high risk populations: elderly, diabetic, hypertensive
  • AAA - pain to back, tearing sensation
  • Dissection - pain, decreased pulses, neuro findings
  • Mesenteric Ischemia / schemic Colitis - pain out of proportion to exam findings
  • Torsion - radiating pain to abdomen - document a genital exam

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Disclaimer: This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice. The speaker provides this information only for Continuing Medical Education purposes.

Content abstracted from: Nguyen Anh, Nguyen Dung. Learning from Medical Errors. Radcliffe Publishing, UK. 2005. P 11-13.

Malpractice insurance may not cover the following activities:

• Practicing outside the scope of your specialty (eg: writing admission orders, running upstairs to run resuscitations).
• Undocumented treatment (ie: no ED chart generated)
• Prehospital orders
• EMTALA violations
• Hospital committee work
• Contract violations
• Fraud (including billing mistakes)
• Defamation
• Violation of privacy
• Harassment
• Sexual misconduct
• Assault and battery
• Other crimes

Disclaimer: This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice. The speaker provides this information only for Continuing Medical Education purposes.

Thanks to Larry Weiss, MD, JD

Acute Coronary Syndrome (our number one area of liability) ===>Undiagnosed MI is the number one area of liability in emergency medicine, internal medicine, and family practice. ===>In emergency medicine, undiagnosed MI accounts for approximately 30% of all dollars lost in litigation. ===>MI patients mistakenly discharged have a 25% mortality rate, twice the rate of admitted patients. ===>Emergency physicians miss 2% of MIs. Office practitioners miss about 10% of MIs. ===>Failure-to-diagnose is the most common allegation in litigation following missed MIs. Misinterpretation of EKGs is the second most common allegation. ===>Poor documentation is the most common mistake in failure-to-diagnose cases (ie: failure to document why the physician decided the patient did not have ACS). Thanks to Larry Weiss, MD, JD Disclaimer: This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice. The speaker provides this information only for Continuing Medical Education purposes.

ED Chart Documentation (Part 2) ==> If writing an addendum after-the-fact, identify the note by date and time. ( late entry ). Otherwise, NEVER alter the chart after-the-fact. ==> Always address the patient s documented complaints. ==> Don t write incident report filed. ==> Be specific about times for follow-up. (eg:2 days, 1 week, next available) ==> Provide a warning about sedatives (eg: Don t drive ). ==> Whenever possible, document past tolerance of toxic drugs when prescribed (eg: NSAIDs). ==> Document a warning not to drive when treating patients for a seizure, or when refilling anti-epileptic drugs. Courtesy of Larry Weiss, MD, Jd Disclaimer:This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice. The speaker provides this information only for Continuing Medical Education purposes.

ED Chart Documentation ==> Provide documentation that you ruled out the worst possible outcome. ==> Read and acknowledge the nurse s notes especially if a conflict exists. ==> Always address abnormal vital signs. ==> Provide times for all notes. ==> Don t use demeaning terminology to describe patients. ==> Write interval progress notes when a patient s condition changes. ==> Document lab, EKG, and x-ray abnormalities. Disclaimer:This information does not constitute legal advice, is general in nature, and because individual circumstances differ it should not be interpreted as legal advice. The speaker provides this information only for Continuing Medical Education purposes.