MALPRACTICE: PART I
From High Risk Emergency Medicine, sponsored by University of California, San Francisco, School of Medicine
Gregory L. Henry, MD, FACEP, Clinical Professor, Department of Emergency Medicine, University of Michigan
Medical School, Ann Arbor, Past President, American College of Emergency Physicians, and CEO, Medical Practice
Risk Assessment Inc.
| PREVENTING MALPRACTICE CLAIMS
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| Objective: better care for patients (not simply avoidance of malpractice claims)
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| Jury trials: jurors often do not have advanced education, but expected to make sense of complex medical
issues; some oversights, although not medical errors, always leave negative impression on jury
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| Red flags: unanswered abnormal vital signs—understand relevance of vital signs for each patient; address
all abnormal vital signs; always repeat vital signs (if abnormal) before discharging patient (part of discharge
protocol); negative nursing notes—you must address all negative nursing notes; nurses must inform
physician of negative notes; writing nursing notes after patient leaves may cause problems
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| Discharge from emergency department (ED): “moment of truth”; half of lawsuits in emergency medicine
stem from problems with discharge process
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| Physician-patient relationship: patient’s perception of medical encounter critical; how physician interacts
with patients affects their perceptions of quality of care; what physician does (ie, behavior) more
important than what physician thinks (ie, medical knowledge)
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 | Patient concerns: anticipate and address questions and concerns (eg, boy, 16 yr of age, presents with abdominal
pain; mother has concerns about appendicitis, even if not verbalized; if physician fails to address
concerns, mother leaves unsatisfied)
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| Interaction skills: studies have found relationship between number of complaints physicians receive and
likelihood of malpractice claims
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| Diagnosis: ≈50% of patients who present to ED leave without final diagnosis; “diagnostic impression”
more accurate term (consider changing verbiage on charts to reflect this); diagnostic impression easier to
modify as illness changes or progresses; honesty about diagnostic uncertainty important
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| Professional courtesy: beware of requests for opinions about other physicians or practices (eg, whether
particular tests should have been performed); avoid negative comments about other clinicians; remember,
situation may have changed (ie, difficult to assess previous evaluation and care without direct observation)
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| Anticipatory guidance: communicate with patients; let them know what to expect; always overestimate
wait times
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| Consulting primary care providers: when in doubt, contact primary care physician (if possible); attempting
contact appreciated by patients; opinions—remember to remain positive or neutral when asked
to comment on primary care provider
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| Timeliness: avoid irrelevant or inappropriate tests (waste time and money); take time to educate patients
when no treatment necessary (eg, otitis media)
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| Before discharging patient: physician presence required at discharge; family presence recommended
when possible and appropriate; important questions—does patient understand instructions and details for
follow-up? (have patient repeat instructions to you); does anyone else (eg, family, primary care provider)
need information on condition? does patient require pain medication or doctor’s note (give this now to
save time); on-call physician referral—patients need names of physicians committed to seeing them immediately
(ie, not simply list of names of doctors taking new patients); delay in follow-up care may
prove disastrous; patient also must have ability to get prescriptions filled
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| “Standard of caring”: standard of care—legal concept, meaning “that which a reasonable physician of
like or similar training would do under like or similar circumstances”; patients (and jury) want to see
proof that physician cares (not that physician only provides medical attention)
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| Re-entry and follow-up: condition not clinically diagnosable at time of presentation may progress quickly;
returning patients need to re-enter system easily; medical establishment should model interactions after
other service-oriented industries (politeness; helpfulness)
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| Discharge instructions: patient leaves with prescription (when appropriate) and discharge instructions
only; detailed instructions required; time specificity—never write “see your doctor if not better” (too
vague); provide time estimate (varies with situation, eg, vomiting infant [6-12 hr]; adult with sprained
ankle [5-7 days]); clarity—person with third-grade reading ability should understand instructions completely;
action specificity—avoid vague instructions (eg, “soak” and “ice”); provide details for carrying
out action (ie, quantity, duration, frequency); legibility—malpractice suits lost due to illegible discharge
instructions; incomprehensible instructions equivalent to no instruction; language—avoid medical jargon
and abbreviations (eg, tid, F/U), which may compromise patient’s ability to understand instructions,
leading to delay in treatment
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| Collaborative relationships: on-call physician—guarantee accessibility (call if necessary); specialists—
encourage mutually helpful relationships with orthopedists, pediatricians, and others to ensure timely
follow-up when necessary (note, <10% of children require next day follow-up)
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| Ethics: executive committee appropriate venue for resolving issues with on-call physicians; physician may
not inquire about financial status of patient when on-call (considered immoral); children—consider admitting
pediatric patients if parents unreliable or dangerous; beware of signs of abuse and neglect; realize
moral obligation to defend and protect children
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| Against medical advice (AMA): informed refusal of treatment
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| Required elements: capacity to make medical decisions; adult patients of sound mind can refuse care; capacity
requires alert mental status and ability to understand situation; case—intoxicated individual allowed
to sign out AMA, walks out of hospital and immediately hit by bus; in court, nursing note about
altered mental status and handwriting called into question; expert cited “psychomotor impairment” and
inability to make medical decisions; case lost ($2.4 million)
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| Documentation: document proof of capacity and informed refusal; when discussing condition with patient,
use relatively simple language (eg, “major heart attack” rather than “acute anterior inferior myocardial
infarction”); avoid vague terms (eg, “bad outcome”); inform patient of possible outcomes and
alternatives
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| Resolving excuses: patients have many reasons for wanting to leave AMA; relationships with various
organizations (eg, Humane Society if patient worried about pets, police department if worried about
children waiting in unsafe neighborhood after school) useful for ameliorating or eliminating issues;
family and friends often can persuade patient to stay in hospital; savvy clinicians know how to involve
spouses and other family members (even if patient does not give permission to discuss medical
condition)
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| Signature: if patient insists on leaving ED, try to get patient’s signature and those of family members
(proof of attempt made to keep patient in hospital); note—AMA should rarely occur; physician who
readily allows (or encourages) AMA deserves investigation
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| Other exit issues: left before examination (LBE)—issue usually results from extended wait-time; documentation
required (eg, change in status; opportunity for examination offered); returning patients—encourage
return after AMA discharge; remain polite and respectful (avoid “I told you so”); elopements—patients
may disappear during examination; intentional search required (eg, waiting area, bathroom, smoking
area); if patient not located in 30 min, inform contact at phone number provided (document this)
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| Defensible medical record: medical record stands alone in court
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| Fraud and abuse: fraudulent documentation (eg, systematic “up-coding” of chart) considered criminal act
and may result in jail sentence; important to know procedures for billing and reviewing; provider number
identifies responsible physician; physician who signs chart and gives provider number for billing
but does not personally examine patient has committed billing fraud and may go to jail
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| Useless information on chart: document only relevant information; carelessness (eg, writing “PERRLA”
when accommodation not assessed) leaves physician open to questions about integrity
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| Amending medical records: date and time all addendums; neatly cross out incorrect verbiage, write correction,
date, and time, and initial change; never alter medical record (made federal offense by Health
Care Quality Improvement Act, 1997)
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| Discrepancies with nursing notes: read nursing notes; clarify all discrepancies in language (eg, “rigid abdomen”
or “lethargic”) before signing chart; consider having nurse amend note, based on patient’s improved
status, or acknowledge nursing note, then document improvement in patient’s appearance
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| Casual comments: always avoid casual comments (especially derogatory comments); case—malpractice
case settled, not because of medical error, but because of derogatory description of patient
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| Method of recording information on chart: hand-written documentation generally not preferred; check-
boxes efficient, good for yes/no questions, but insufficient for complex assessment; dictation recommended
when history or medical decision-making complex (you will not remember details years later in
court)
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Educational Objectives
| The goal of this activity is to describe common pitfalls in emergency department (ED) practices that compromise
patient care and increase risk for malpractice claims. After hearing and assimilating this program,
the clinician will be better able to:
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| 1. Identify common problems in emergency medicine that may leave physicians vulnerable to malpractice
claims.
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| 2. Evaluate medical records for clarity, consistency, and accuracy.
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| 3. Establish a discharge protocol that ensures proper documentation.
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| 4. Communicate discharge instructions effectively to patients and family members.
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| 5. Reduce frequency of patients leaving ED against medical advice.
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Suggested Reading
Andrew LB: Expert witness testimony: the ethics of being a medical expert witness. Emerg Med Clin North
Am 24:715, 2006; Davis GG: The art of attorney interaction and courtroom testimony. Arch Pathol Lab Med
130:1305, 2006; Green S: Coherence of medical negligence cases. A game of doctors and purses. Med Law
Rev 14:1, 2006; Karp D: Good documentation protects everyone. Med Econ 83:82, 2006; Macy C, et al:
The relationship between the hospital setting and perceptions of family-witnessed resuscitation in the
emergency department. Resuscitation 70:74, 2006; Mazor KM, et al: Disclosure of medical errors: what
factors influence how patients respond? J Gen Intern Med 21:704, 2006; Sage WM: Malpractice liability,
patient safety, and the personification of medical injury: opportunities for academic medicine. Acad Med
81:823, 2006; Schlafly A: Ten things trial lawyers hope you don’t learn. Surg Neurol 66:188, 2006; Sconyers
J, Pugsly S: Practical ethics: MD turns JD. Hosp Health Netw 80:20, 2006; Solomon RC: Ethical issues
in medical malpractice. Emerg Med Clin North Am 24:733, 2006; Taheri PA, et al: Medical liability—the
crisis, the reality, and the data: the University of Michigan story. J Am Coll Surg 203:2900, 2006; Wendin
SR: The role of risk management in reducing costs and increasing patient safety. World Hosp Health Serv
42:17.
Faculty Disclosure
In adherence with ACCME guidelines, the Audio-Digest Foundation requests all lecturers to disclose any
significant financial relationship with the manufacturer or provider of any commercial product or service
discussed. For this issue, the faculty reported nothing to disclose.
Dr. Henry was recorded in San Francisco, CA, at High Risk Emergency Medicine, sponsored by University of
California, San Francisco, School of Medicine, and held May 24-26, 2006. The Audio-Digest Foundation
thanks Dr. Henry and the University of California, San Francisco, School of Medicine for their cooperation
in the production of this program.
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