could this be you? medical-legal case studies … this be you? medical-legal case studies michael...

Could This Be You?Could This Be You?

MedicalMedical--Legal Case StudiesLegal Case Studies

Michael Jay Michael Jay BreslerBresler,, M.D., M.D., FACEPFACEP

Clinical ProfessorClinical Professor

Division of Emergency MedicineDivision of Emergency MedicineStanford University School of Stanford University School of

M di iM di i

MEDICAL - LEGAL CASE WISDOM

MEDICAL - LEGAL CASE WISDOM

We (Should) Hold These Truths to be Self-Evident

To slide 162

Doctors and Plaintiff’s Lawyers

Doctors and Plaintiff’s Lawyers

Do Not Share Love

If you’re suedIf you’re sued

You’re screwed

So Don’tSo Don’t

Get Sued !!

A Few Important Reminders

A Few Important Reminders

In no way can we summarize all the medical-legal risks we face.These are just a few of the more frequent problems leading to Emergency Medicine litigation.

Communication is crucial.Communication is crucial.

•• Let the patient talk.Let the patient talk.•• Let the family talk.Let the family talk.•• Remember: Remember:

––Only lawyers know what Only lawyers know what the dead really said....the dead really said....

Communication is crucial.Communication is crucial.

•• Lack of English is no excuse Lack of English is no excuse –– for youfor you!!

•• Use a medical translator, the ATT Use a medical translator, the ATT language line, or similar servicelanguage line, or similar service

•• Be wary of using family members, Be wary of using family members, especially in socially sensitive especially in socially sensitive situationssituations

CHARTINGCHARTING

DOCUMENTDOCUMENTDOCUMENTDOCUMENT

DOCUMENTDOCUMENTDOCUMENTDOCUMENT

DOCUMENTDOCUMENT

AND ONE MORE THING AND ONE MORE THING ------>>

DOCUMENT!DOCUMENT!

Template ChartsTemplate Charts

•• UsefulUseful–– Save timeSave time–– Lots of informationLots of information–– May jog your memoryMay jog your memory–– Great for billingGreat for billing

•• But can be dangerousBut can be dangerous–– Place check marks carefullyPlace check marks carefully–– Write or dictate additional supporting Write or dictate additional supporting

evidenceevidence

Template ChartsTemplate Charts

•• As we convert toAs we convert to electronic medical electronic medical records, the urge to just check off the records, the urge to just check off the boxes or use smart phrases will be even boxes or use smart phrases will be even more tempting.more tempting.

•• The same principles applyThe same principles apply

Read the Nursing NotesRead the Nursing Notes

Same for Paramedic NotesSame for Paramedic Notes

Even though neither is written Even though neither is written for your benefit !for your benefit !

BewareBeware !!!!

•• Beware of notes written Beware of notes written –– After you have completed your chartsAfter you have completed your charts–– After the patient has left the E.D.After the patient has left the E.D.

•• If the Paramedic notes are not available If the Paramedic notes are not available to you to you -- document that.document that.

Death RayDeath Ray

•• DonDon’’t lose your patient in Xt lose your patient in X--Ray!Ray!––DonDon’’t forget theyt forget they’’re therere there––Send a nurse if unstableSend a nurse if unstable––Send a monitor (and a nurse!) if Send a monitor (and a nurse!) if

appropriateappropriate

AfterAfter--Care Instructions are CrucialCare Instructions are Crucial

•• Both in writing Both in writing -- and in realityand in reality•• Make sure the patient understandsMake sure the patient understands•• Ideally, have the patient repeat the Ideally, have the patient repeat the

instructions back to you instructions back to you –– preferably in a language you understand!preferably in a language you understand!

•• The nurse can hand over the written The nurse can hand over the written instructions, while repeating instructions, while repeating what you what you have already told the patient yourself.have already told the patient yourself.

AfterAfter--Care Instructions are CrucialCare Instructions are Crucial

•• Lack English is no excuse Lack English is no excuse -- for you!for you!•• The law says itThe law says it’’s your fault if the patient s your fault if the patient

does not speak your language does not speak your language -- really!really!•• You can use the AT&T or similar languageYou can use the AT&T or similar language

service or a medical translator.service or a medical translator.•• Family members may be OK, but beware of Family members may be OK, but beware of

socially sensitive situations, as well as socially sensitive situations, as well as deficient translation skills.deficient translation skills.

Leaving Against Medical Advice

• The patient must be mentally competent• Potential consequences of the AMA

decision should be explained• The option of returning to the ED should

be offered• Appropriate follow up options should be

given• The chart should document all of this!

Temporary Admission (Holding) Temporary Admission (Holding) OrdersOrders

•• Communication is CriticalCommunication is Critical–– Between you and the admitting M.D.Between you and the admitting M.D.–– Between you and the floor nursesBetween you and the floor nurses–– Between the floor nurses and the Between the floor nurses and the

admitting M.D.admitting M.D.

Temporary Admission (Holding) Temporary Admission (Holding) OrdersOrders

•• Who will be in charge?Who will be in charge?•• Who knows that?Who knows that?•• What is the life spanWhat is the life span

–– Of the data you have collected?Of the data you have collected?–– Of your orders?Of your orders?

•• What should be done when thereWhat should be done when there’’s a s a question or problem?question or problem?

EMTALA (COBRA)EMTALA (COBRA)

•• Screening exam before $ inquiryScreening exam before $ inquiry•• Can be performed by RN but mustCan be performed by RN but must

be per protocol with prior trainingbe per protocol with prior training•• Patient must be stabilized withinPatient must be stabilized within

the capability of the hospitalthe capability of the hospital––Whatever Whatever ““stabilizationstabilization”” means!means!


•• Discharge from E.D. countsDischarge from E.D. counts•• Transfer to another facility countsTransfer to another facility counts•• Not in active labor means noNot in active labor means no

reason to suspect delivery priorreason to suspect delivery priorto arrival at receiving facility to arrival at receiving facility


•• Stable patients may be transferred Stable patients may be transferred for economic reasonsfor economic reasons

•• Unstable patients may be Unstable patients may be transferred for medical reasontransferred for medical reason

•• Appropriate documents/records Appropriate documents/records must accompany transferred must accompany transferred patientpatient


•• EMTALA violation may be foundEMTALA violation may be found––Without malpracticeWithout malpractice––Without a bad resultWithout a bad result

•• Finger the bad guy if there is oneFinger the bad guy if there is one––If you have to transfer an If you have to transfer an

unstable patient, state the reasonunstable patient, state the reason


The best protection The best protection and the best defense:and the best defense:

DO THE RIGHT THING !DO THE RIGHT THING !

Follow up Lab & XFollow up Lab & X--ray Reports ray Reports

•• Tell the patient & family that xTell the patient & family that x--ray ray results are preliminary.results are preliminary.

•• Have a formal protocol in placeHave a formal protocol in place•• Make sure the followMake sure the follow--up is up is

completedcompleted•• DOCUMENT !!!DOCUMENT !!!

Change of ShiftChange of Shift

•• Make no assumptionsMake no assumptions•• ReRe--evaluate if conditions changeevaluate if conditions change•• Make sure you BOTH feel Make sure you BOTH feel

comfortablecomfortable•• DOCUMENT !!!DOCUMENT !!!

Return VisitsReturn Visits

•• Unscheduled return visits may be Unscheduled return visits may be ominous.ominous.

•• Reconsider all assumptionsReconsider all assumptions

•• Think of reasonsThink of reasons NOT to admit NOT to admit rather than the opposite.rather than the opposite.

Medical Clearance for PsychMedical Clearance for Psych

•• Organic Organic vsvs. Non. Non--OrganicOrganicIs there Cognitive Dysfunction?Is there Cognitive Dysfunction?

•• Mental Status Exam for CognitionMental Status Exam for Cognition–– Level of ConsciousnessLevel of Consciousness–– OrientationOrientation–– MemoryMemory–– AttentionAttention–– Fund of InformationFund of Information


•• No one can be No one can be ““medically clearedmedically cleared””in the E.D.in the E.D.

•• They can be judged medically nonThey can be judged medically non--emergent at a given point in time.emergent at a given point in time.


Sample wording:Sample wording:

““ At this time there is no evidence of a At this time there is no evidence of a nonnon--behavioral medical emergency behavioral medical emergency which would precludewhich would preclude transfer of care transfer of care to the psychiatric service or to to the psychiatric service or to another facility for further psychiatric another facility for further psychiatric as well as medical as well as medical evaluation.evaluation.””

Chest PainChest Pain•• Cardiac or NonCardiac or Non--Cardiac?Cardiac?

–– Aortic Dissection?Aortic Dissection?–– Esophageal reflux or spasm?Esophageal reflux or spasm?–– G.I. Gas?G.I. Gas?–– Chest Wall?Chest Wall?

•• If CardiacIf Cardiac–– M.I. or Unstable Angina?M.I. or Unstable Angina?

Chest PainChest Pain•• Remember Remember --

–– Cardiac pain can be burningCardiac pain can be burning–– Cardiac pain can be Cardiac pain can be epigastricepigastric–– Cardiac pain can be Cardiac pain can be pleuriticpleuritic

•• The crucial question The crucial question --–– Is there pain Is there pain betweenbetween breaths?breaths?

•• Beware of GI cocktailBeware of GI cocktail•• Beware of chest wall tendernessBeware of chest wall tenderness

Chest PainChest Pain

•• If dischargedIf discharged––Arrange for follow up.Arrange for follow up.––Both patient and family must Both patient and family must

understand that you cannot understand that you cannot absolutely rule out a heart absolutely rule out a heart condition.condition.

Abdominal PainAbdominal Pain

•• Can always be early appendicitis Can always be early appendicitis --Or anything else!Or anything else!

•• If discharged, let patient and family If discharged, let patient and family know that a serious conditionknow that a serious conditioncould develop over the next few could develop over the next few hours or dayshours or days

•• Document that discussion.Document that discussion.


•• Appendicitis can cause Appendicitis can cause pyuriapyuria

•• AAA can cause AAA can cause hematuriahematuria

•• Abdominal pain in the elderly is Abdominal pain in the elderly is serious until proven otherwiseserious until proven otherwise


•• Pain out of proportion to exam in Pain out of proportion to exam in older folks may be mesenteric older folks may be mesenteric ischemia. Check for ischemia. Check for ––Guaiac Guaiac positive stoolpositive stool––Elevated amylaseElevated amylase––Metabolic acidosisMetabolic acidosis

Back PainBack Pain

•• DonDon’’t forget to evaluate the t forget to evaluate the autonomic system, at least by autonomic system, at least by historyhistory

–– Cauda Equina Cauda Equina SyndromeSyndrome•• Bowel or BladderBowel or Bladder

–– Incontinence or Incontinence or –– incomplete evacuationincomplete evacuation

Back PainBack Pain

•• Severe back pain in needle usersSevere back pain in needle users–– Malingering?Malingering?–– Real back pain Real back pain -- like any other like any other

patient?patient?–– Epidural abscess? Epidural abscess? (especially (especially

thoracic thoracic -- which may have no which may have no neurologic neurologic signs or symptoms!)signs or symptoms!)

Back PainBack Pain

•• Back pain in older patients, Back pain in older patients, especially left sided especially left sided -- even with even with hematuria hematuria -- is ruptured abdominal is ruptured abdominal aortic aortic aneurysim aneurysim until proven until proven otherwise otherwise

HeadacheHeadache

•• Suspect Suspect Subarachnoid Subarachnoid Hemorrhage (SAH) ifHemorrhage (SAH) if––Sudden onset of headache, Sudden onset of headache,

maximizing in 1maximizing in 1--2 minutes2 minutes––Worst headache everWorst headache ever

HeadacheHeadache

•• CT may miss 2CT may miss 2--10% of SAH, depending 10% of SAH, depending on the scanneron the scanner

•• While newer generationWhile newer generation 64 detector CT 64 detector CT scanners are much more sensitive, scanners are much more sensitive, there are nothere are no reliable sensitivity data reliable sensitivity data available yetavailable yet

HeadacheHeadache

•• If SAH is suspected, and the CT is If SAH is suspected, and the CT is negative, further investigation is negative, further investigation is requiredrequired

•• Traditionally, that means LPTraditionally, that means LP

HeadacheHeadache

•• However, newer modalities may reveal However, newer modalities may reveal hemorrhage, and importantly, may also hemorrhage, and importantly, may also reveal the suspected underlying reveal the suspected underlying aneurysm or AVM.aneurysm or AVM.–– CT angiographyCT angiography (CTA)(CTA)–– MR imaging/angiography (MRI/MRA)MR imaging/angiography (MRI/MRA)

•• It is not yet known if these modalities It is not yet known if these modalities are sufficiently reliable to replace LPare sufficiently reliable to replace LP

Clearing the CClearing the C--SpineSpine

The neck may be cleared in an alert The neck may be cleared in an alert patient who can feel pain, has no major patient who can feel pain, has no major distracting injuries, and:distracting injuries, and:–– Denies neck painDenies neck pain–– No tenderness on palpationNo tenderness on palpation–– No pain with rotation No pain with rotation --> flexion> flexion

•• Remember SCIWORARemember SCIWORA–– Cord injury is not radioCord injury is not radio--opaque!opaque!

Serious Extremity Trauma May Not Serious Extremity Trauma May Not Be ObviousBe Obvious

•• Ligament damage may be obscured byLigament damage may be obscured by–– Pain, effusion, or muscle spasmPain, effusion, or muscle spasm

•• LimbLimb--threatening arterial injury may not threatening arterial injury may not impair circulation impair circulation -- at firstat first–– Popliteal Popliteal artery contusion may lead to artery contusion may lead to

delayed thrombosisdelayed thrombosis

Serious Extremity Trauma May Not Serious Extremity Trauma May Not Be ObviousBe Obvious

•• Always evaluate & document Always evaluate & document motor, sensory & vascular statusmotor, sensory & vascular status

•• Beware of compartment syndrome Beware of compartment syndrome with continuing pain out of with continuing pain out of proportion to injury or examproportion to injury or exam

•• Palpable pulses may be present!Palpable pulses may be present!

Drug Addicts Are Often SickDrug Addicts Are Often Sick

•• Beware of occult infectionBeware of occult infection––Especially epidural abscessEspecially epidural abscess

•• If addicts need pain meds, they If addicts need pain meds, they usually need significant dosesusually need significant doses

Endotracheal IntubationEndotracheal Intubation

•• CONFIRM & DOCUMENTCONFIRM & DOCUMENT–– Symmetric breath soundsSymmetric breath sounds–– No gastric soundsNo gastric sounds–– Vapor in the tubeVapor in the tube–– Good complianceGood compliance–– Oxygen saturationOxygen saturation–– Carbon dioxide variationCarbon dioxide variation–– ““Turkey Turkey basterbaster””

•• Secure the tubeSecure the tube

ConclusionConclusion

•• The best preventionThe best prevention

––Good medical practiceGood medical practice––Good communicationGood communication––Good documentationGood documentation


If If -- really when! really when! -- it happens:it happens:•• Stay calmStay calm•• It really is just a gameIt really is just a game

––At least for the lawyersAt least for the lawyers……•• ItIt’’s only the word processor that s only the word processor that

says you shouldnsays you shouldn’’t have been bornt have been born


You are not alone!You are not alone!•• We all get suedWe all get sued•• DonDon’’t suffer alonet suffer alone

––ACEP, county & state medical ACEP, county & state medical societies can provide supportsocieties can provide support

•• DonDon’’t let it take over your lifet let it take over your life


•• ACEP members can submit ACEP members can submit outrageous deposition testimony to outrageous deposition testimony to the Standard of Care Review Boardthe Standard of Care Review Board

•• Their findings may be admissible in Their findings may be admissible in court.court.


•• As Bob Dylan once saidAs Bob Dylan once said““Everybody must get stonedEverybody must get stoned……

•• But if youBut if you’’re a good doc, communicate re a good doc, communicate with your patients, and document,with your patients, and document,

•• YouYou’’ll usually be O.K.ll usually be O.K.

could this be you? medical-legal case studies … this be you? medical-legal case studies michael...

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