Malpractice Prophylaxis Educational Objectives The goal of this program is to prevent malpractice and related lawsuits. After hearing and assimilating this program, the clinician will be better able to: Recognize the importance of excellent care and of the physician’s attitude and leadership in the emergency depart­ment (ED) in avoiding a malpractice lawsuit. Interact with patients in an effective and respectful manner in various situations. Record relevant information in the patient’s chart. Recognize the importance of timing physicians’ orders. Manage combative and difficult patients in the ED. Faculty Disclosure In adherence to ACCME Standards for Commercial Support, Audio-Digest requires all faculty and members of the planning committee to disclose relevant financial relationships within the past 12 months that might create any per­sonal conflicts of interest. Any identified conflicts were resolved to ensure that this educational activity promotes quality in health care and not a proprietary business or commercial interest. For this program, the faculty and plan­ning committee reported nothing to disclose. Acknowledgements Dr. Pollock was recorded at the Pennsylvania Chapter, American College of Emergency Physicians Scientific Assem­bly 2009: Advances, Controversies, and Technology, held April 13-16, 2009, in Pittsburgh, PA, and sponsored by the Pennsylvania Chapter of the American College of Emergency Physicians. Dr. Bresler was recorded at High-Risk Emergency Medicine, held May 21-23, 2009, in San Francisco, CA, and sponsored by the Emergency Department at San Francisco General Hospital, and Department of Emergency Medicine, University of California, San Francisco, School of Medicine. The Audio-Digest Foundation thanks the speakers and the sponsors for their cooperation in the production of this program. How to Avoid Being Sued Gary F. Pollock, MD, Attending Physician, Department of Emergency Medicine, University of Pittsburgh Med­ical Center, and Associate Residency Director, University of Pittsburgh Affiliated Residency in Emergency Med­icine, Pittsburgh, PA Suggestions and recommendations: providing excellent care — first and foremost; stay current with latest topics in emergency medicine; maintain skill level; do not ignore vital signs and “gut feeling”; know what one does not know and let patient know; if not comfortable about something, acquire more data, ask for help, or refer to spe­cialist; know high-risk areas; identify high-risk patients (eg, lawyer, angry patient); those with high risk for poor outcome include immunocompromised patient (eg, HIV-positive, diabetic, alcoholic, substance abuser); get ade­quate sleep and exercise; be particularly cautious at beginning and end of shift; be prepared and show up in timely manner; end shift at appropriate time; identify, recognize, and guard against own biases; take time to eat, relax, and collect thoughts in middle of shift; always do right thing, even when difficult; keep focus on patient Errors: seize opportunity to look back and determine if mistake made and correct mistake; when errors occur, im­portant to address upfront (controversial); if true error made, acknowledge error, apologize to patient, and move on, without incriminating self Interaction with colleagues and staff: important to show up early and obtain good sign-out; listen to colleagues; im­portant to “read” partner; keep partners and staff happy; be flexible and approachable (nurse should be able to ques­tion order); know names of individuals working in own department; lead by example, especially in how patients treated and respected; debriefing — after stressful situation (eg, pediatric arrest), gather staff together to talk about situation and how things could be done better in future Metacognition: defined as thinking about how one thinks; reason for charting in real time and determining whether everything makes sense; review history and physical examination of patient and read nurses’ notes; look at vital signs and address, if abnormal; perform reassessment of case; 3 questions to ask one’s self — whether everything makes sense (after obtaining all data); consider all worst case scenarios; if worst-case scenario occurs, whether ev­erything possible done (what prudent person would have done in same situation); take last look at chart and check whether nurses’ notes or resident’s notes appropriate Interaction with patient: treat people well; data show that “happy” patients do not file lawsuits; not being listened to or taken seriously number 1 complaint of patients; manage patient’s expectations; know patient’s reason for pre­sentation; first impressions matter, so dress professionally; attitude — introduce self; know name of patient; sit down while talking to patient (gives impression of longer time spent with patient); apologize for patient’s wait, even if only short time; seek first to understand, then to be understood; pay attention to own body language and patient’s body language; respect privacy of patient; involve and listen to patient’s family in decision-making; avoid criticism of someone else’s treatment; have willingness to put on “show” to let patients know that thorough job performed and care provided; compliment patient and care provider Patient’s expectations: meet or exceed them; recognize reason for patient presenting to emergency department (ED); main reasons include pain, note required for school or work, and pressure from family; avoid minimizing patient’s concerns, validate them; let patient know that everything done to meet his or her needs; physician should be honest about what he or she does not know; keep patient informed; use real words (avoid medical jar­gon); avoid high-risk phrases; develop people skills; recognize leadership role; be willing to apologize Discharge of patient: critical time; last opportunity to ”make everything right”; discharge instructions critical; ad­vise patients about situations that necessitate return to ED in simple understandable terms (have patient repeat); patient leaving against medical advice should not leave ED angry; optimize care as outpatient; make follow-up phone calls next day and document Concluding thoughts: must be proactive; know medical staff and maintain good integrity with staff; pick “battles” carefully; exercise caution with e-mails, especially angry ones; participate in hospital affairs; care of patient num­ber 1 reason for being physician; communicate with patients The Medical Chart: Anticipating the Lawyer’s Review Michael J. Bresler, MD, Clinical Professor of Emergency Medicine, Stanford University School of Medicine, Palo Alto, CA, and Director, Department of Emergency Medicine, Mills-Peninsula Health Services, Burlingame, CA Introduction: contents of chart as important as how patient treated; ideally, should not be as important, but is, in medicolegal sense Case: anesthesiologist called emergently because ED physician unable to intubate postoperative patient; anesthesiol­ogist’s notes illegible but indicated that endotracheal tube (ETT) in esophagus and left in place; patient resuscitated, with prolonged intensive care unit (ICU) course and multiorgan failure, and eventually died; actually semielective intubation, as patient had small amount of stridor and could have waited for anesthesiologist; suit filed against ED physician; from ED physician’s notes, not clear whether ETT removed by ED physician or whether bag-valve-mask (Ambu bag) attached through esophageal ETT; question of whether O2 saturation measured between attempts and when asystole occurred; after 4 yr of litigation — it became clear that ED physician had pulled ETT out of esopha­gus immediately and ventilated patient using bag, achieving good O2 saturation; asystole occurred when anesthesi­ologist, after intubation, tried to change ETT to larger one; case dropped; take home lesson — chart should reflect all events that occurred and tell story; should speak for physician; goal for record to speak for itself, without requir­ing subsequent explanation; most potential lawsuits aborted when plaintiff’s attorney reviews chart that makes clear what happened Case: woman, 76 yr of age, presented to ED with mild epistaxis lasting for several hours; bleeding stopped; ED phy­sician placed anterior pack as precaution, but severe nasal bleeding occurred; blood pressure (BP) dropped to 60 mm Hg, and patient became unresponsive; airway filled with blood; rapid-sequence intubation performed with dif­ficulty; eventually, bleeding stopped; patient survived but with brain damage; ED physician sued; previous record showed patient had Osler-Weber-Rendu vascular anomaly, with previous life-threatening nosebleed requiring trans­fusion of 8 units of blood; previous warning against instru-mentation of nose in case of epistaxis; take home message — review of past records necessary Case: woman, 63 yr of age, involved in motor vehicle accident; complains of neck pain and thinks that she hit her forehead against windshield; was wearing seatbelt; cervical spine immobilized by paramedics; alert and oriented; physical examination normal, except for moderate tenderness of posterior neck; spine x-rays performed and read as normal; immobilization discontinued; given cervical collar and prescription for analgesic and told to follow up with her physician next day; nursing notes reported that patient continued to complain of weakness; patient had incom­plete C5 and C6 paraplegias; diagnosis spinal cord contusion and hematoma; question of whether ED physician read nursing notes and when notes written; take home lesson — nursing notes part of medical record; also true for paramedic notes (if paramedic notes not available, indicate in chart); beware of notes written after ED physician has completed own notes (some physicians draw line in chart with date and time after last nursing note they see before leaving) Case: woman, 74 yr of age, presents at ED with abdominal pain; family informs screening nurse of 5-cm aortic aneu­rysm recently diagnosed; vital signs stable; computed tomography ordered 3 hr later, and 1 hr later, BP drops to 70 mm Hg; patient rushed to operating room (OR) and dies while in OR; legal claim delay by ED crew, particularly ED physician, in evaluating patient; real issue delay of several hours by nurse to “bed” patient; case dropped be­cause of adequate notes (dictated) by ED physician; lesson —necessary that process of medical decision-making present in chart, with explanation of reasoning; charting should be realistic and not include actions not performed; credibility crucial; particular care necessary for template charts Medical clearance for psychiatry: adequate evaluation consists of appropriate physical and neurologic examination and laboratory tests; medical chart should include sample wording stating that at present time, no evidence of non­behavioral medical emergency that would preclude (whatever action necessary to be performed) for further psychi­atric as well as medical evaluation Temporary admission or holding orders: ED physician should never be compelled to write temporary holding or­ders, unless comfortable with it; crucial issue of which individual in charge of patient; communication essential if care transferred from one physician to another; orders should be appropriate for present and for future and should cover contingencies; detailed orders not necessary Timing of orders: necessary; electronic health records particularly dangerous, especially with verbal order, as order does not appear on record until actually typed in; resident’s notes usually more detailed than ED physician’s notes Signing out against medical advice: criteria necessary for documentation — patient mentally competent; potential consequences of failure to follow medical advice must be explained to patient; patient should be given option of re­turning (implicit, but ideal to have in writing); appropriate follow-up should be arranged, if possible; should docu­ment if patient refuses to sign ETT intubation: to confirm that ETT correctly placed, chart should show — clear symmetric breath sounds; no gas­tric sounds; vapor in tubes; compliance with bagging; O2 saturation and CO2 variation with colorimeter; good vital signs Combative and difficult patients: chart should contain patient’s exact words, including profanities and threats; doc­ument if necessary to call security before situation escalates into violence Summary: accuracy in charting; should not chart actions not performed; review past medical history; nursing and paramedic notes important; time orders; explain thought process, whether written chart, template chart, or elec­tronic health record; use appropriate wording in providing medical clearance for psychiatry; temporary holding or­ders must be appropriate and relevant; have proper documentation for intubation; write legibly; dictation ideal; after-care instructions and progression of disease process important; must be clear in chart that adequate medical care given; chart should be own defense (at times, only line of defense) and preempt possibility of litigation; ED physician should ask self what actions he or she took, reasons for those actions, and whether chart reflects those ac­tions Suggested Reading Avraham R: Medical malpractice and patient safety. N Engl J Me.17:L55, 2006; Bal BS: The expert witness in med­ical malpractice litigation. Clin Orthop Relat Res 467:383, 2009; Berlin L: Will Saying "I'm Sorry" Prevent a Mal­practice Lawsuit? AJR Am J Roentgenol 187:10, 2006; Hartz A et al: A new tool for assessing standard of care in medical malpractice cases. Plast Reconstr Surg 117:1632, 2006; Kachalia A et al: Missed and delayed diagnoses in the emergency department: a study of closed malpractice claims from 4 liability insurers. Ann Emerg Med 49:196, 2007; Malloch K: The electronic health record: an essential tool for advancing patient safety. Nurs Outlook 55:159, 2007; Monarch K: Documentation, part 1: Principles for self-protection. Preserve the medical record--and defend yourself. Am J Nurs 107:58, 2007; Robbennolt JK: Apologies and medical error. Clin Orthop Relat Res. 467:376. 2009; Stone WM et al: Impact of a computerized physician order-entry system. J Am Coll Surg 208:960, 2009; Vi­rapongse A et al: Electronic health records and malpractice claims in office practice. Arch Intern Med 168:2362, 2008; Wears RL: The chart is dead--long live the chart. Ann Emerg Med 52:390, 2008; Weinstein L: A multifaceted approach to improve patient safety, prevent medical errors and resolve the professional liability crisis. Am J Obstet Gynecol 194:1160, 2006.