Dear Director, I recently got sued for a missed appy case. Although my expert witness was supportive of my care (which did not include a CT), my attorney tells me we’ll need to settle. Now I feel like I need to CT everyone with abdominal pain. What should I do?
Several years ago I found myself in the unique position of talking to my state’s governor for a long time in a very relaxed environment. I asked him what he could do to help doctors when it comes to malpractice reform. His answer was pretty simple. He said that he got sued regularly. It’s just a part of the job and we should get used to it and not take it personally. I was angered and shocked by his answer. In fact, in that moment he lost my vote. But years later I’ve come to realize that there is some truth in what he said.
First, let me say that I understand how emotionally charged it can be to get sued. I got sued early in my career for a missed diagnosis. I wasn’t even working on the shift in question, yet it took two years to get the case dropped. That case goes on every hospital application I complete. It made me angry and showed me an uglier side of medicine. And that was an easier case. Any time we have a bad or unexpected outcome we end up feeling responsible and remorseful. Add to that a malpractice claim which uses a retrospectoscope to label you as “negligent” and you’re likely to end up angry, depressed or both.
1. Put it in perspective
To begin to put the emotional toll of a malpractice claim in perspective, we need to look at the numbers. Research shows that 7-9% of emergency physicians face a new malpractice claim each year. From discussions I’ve had with large and small groups, it appears that malpractice rates vary depending on location and patient population, ranging from 1 per 25,000 patients to 1 per 75,000 ED visits. I generally put the fair estimate at about 1 per 40,000 visits. This means that if you see about 3000 patients a year and sign off on 2000 mid-level charts a year, you could expect to face 1 lawsuit every 8 years.
2. Return to the Evidence
We are taught to practice with evidence based medicine. Even when our clinical decision rules aren’t perfect (think of the PERC rule with its 2% miss rate), the research behind them is based on numerous peer reviewed scientific publications that typically involve hundreds, if not thousands, of patients. These are pretty good rules that I use regularly, but they aren’t perfect. To use the PERC example, out of 1000 cases of possible PE, you will miss 20 of them. Strange though it sounds, that’s an acceptable miss rate given the evidence. When you begin practicing out of fear, deciding that you want to CT everyone, you’re now transitioning to an N of 1, instead of 1000s. That’s simply not an evidence-based way to practice. While it’s likely you won’t miss another appy that way, you’ll be negatively impacting department flow, healthcare costs and the patient’s exposure to radiation.
3. Annual Education and Knowledge Gaps
When reviewing any bad outcome I always try to ascertain whether the problem was related to a lack of knowledge, whether the case had a combination of errors and if these where individual or systems issues. While medical directors have the responsibility to point out clinical weaknesses to their providers that turn up on chart reviews and attending physicians should act to correct deficits, most cases that I review don’t involve knowledge gaps but rather a failure to fully appreciate the patient’s condition. Therefore, much like commercial pilots who go through regular and annual proficiency tests that evaluate high risk situations, healthcare is learning that there are advantages for routine risk management education. My current malpractice carrier gives a rebate if 100% of our group completes a risk management course—in theory because we’re less likely to get sued and cost the carrier money if we know where the holes are in the system and we can prevent them being exposed. Previously, I worked for a very large group where we had to do an extensive bi-annual online risk management course. Internal data showed that physicians who completed the course had a significantly less likelihood of getting sued in the intervening time period following completion of the course. Therefore, I do believe, that regular risk management education (online, ACEP, other CME courses) benefits you as a physician and may reduce your likelihood of getting sued.
Differential Diagnosis and Documentation
I have a friend who used to do a tremendous amount of expert malpractice work and I asked him if reviewing all of these cases with bad outcomes scared him and made him overly cautious in his own practice. He answered with a resounding “NO,” adding that the cases had taught him valuable lessons about how to avoid lawsuits. In particular, he learned to document decision making at the end of his notes while including the differential diagnosis. Of course, this means that the physician occasionally has to think outside the box and at the very least, needs to think through the differential diagnosis. I’ve seen several bad outcomes where the physician was clearly on autopilot and discharged a patient with a negative CT while ignoring the white cell count at 20 with a left shift, a metabolic acidosis and abnormal vital signs. If nothing else, I find that when I write a medical decision making note at the end of the visit it helps me to thoroughly review the chart and collect my thoughts so I can make a more informed diagnosis and disposition.
While it’s not possible to CT every abdominal patient and admit every chest pain patient, there are clearly things that can be done to minimize our risk of a bad outcome. The first two have been mentioned—document and think outside the box for a more thorough differential diagnosis. Next up is to address abnormal vital signs. Typically the first piece of the chart I review when I know there’s been a bad outcome are the vitals—from beginning to end of the ED visit. How stable or abnormal were they? In the same vane as vital signs is the nursing note. Nurses often have key information contained in their notes and sometimes it’s different than ours. While it’s okay to have a discrepancy in portions of the ED visit, these need to be addressed in your medical decision making. While you’re reviewing records, don’t forget to look at the EMS report. This info will make it to a court room so you need to know what’s on it. Finally, if you’re not doing them already to improve your patient satisfaction, consider doing patient call backs on any patient you’re worried about discharging. This can become an opportunity to see how the patient is doing the day after the ED visit and encourage them to return or follow up if symptoms are not improving. In an ideal world, your EMR allows you to easily document these conversations.
If you practice emergency medicine long enough, you’re very likely to get sued. I used to regularly attend a risk management meeting where closed malpractice cases were presented. The docs then “guessed” at the outcome. As we went through the cases, it became clear that plenty of bad medicine was still able to result in a defense verdict while good medicine sometimes led to a settlement or a plaintiff verdict. Lawsuits can happen to anyone and it doesn’t mean that the physician is at fault. Our job then becomes practicing the best medicine we can which includes thorough documentation and addressing inconsistencies like abnormal vitals or nursing notes through our medical decision making. While it’s normal to want to order more tests to practice more defensively, we need to return again and again to the evidence-based practices which will truly put the patient first.
Michael Silverman, MD, is a partner at Emergency Medicine Associates and is chairman of emergency medicine at the Virginia Hospital Center.