Emergency Medicine 2009 Reporter - TMLT

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Emergency Medicine 2009 Reporter - TMLT

theReporterTEXAS MEDICAL LIABILITY TRUSTEmergency Medicine 2009Alleged failure to admit patientEmergency medicine closed claim studyBy Robin DesrocherRisk management representativePresentationA 78-year-old man was brought to the emergency department(ED) from a nursing home. His symptoms includedweakness for several days and impaired speechthat had begun a few hours earlier. The patient’s medicalhistory included diabetes mellitus, hypertension,anemia, stroke, and psychosis. When he arrived at theED his vital signs were blood pressure 154/82 mm Hg;pulse 100; respirations 24; and oxygen saturation 92%.The patient had a do not resuscitate (DNR) order on fileat the nursing home.This closed claim study is based on an actual malpracticeclaim from TMLT. The case illustrates how action orinaction on the part of physicians led to allegations of professionalliability, and how risk management techniquesmay have either prevented the outcome or increased thephysician’s defensibility. The ultimate goal in presentingthis case is to help physicians practice safe medicine. Anattempt has been made to make the material less easy toidentify. If you recognize your own claim, please be assuredit is presented solely to emphasize the issues of the case.Physician actionAn emergency medicine physician evaluated the patientand determined that he was neurologically intact.A blood glucose level of 323 was reported. An EKGobtained in the ambulance was interpreted by the computeras 2nd degree Mobitz II AV block. The emergencyphysician agreed with the computer-generated interpretationof the EKG, and felt there was no need to admitthe patient for work-up of the AV block because he wasnot a surgical candidate and did not need a pacemaker.After reviewing the results of the EKG, the defendantcontacted the patient’s primary care physician atthe nursing home and discussed the patient’s condition.According to the emergency physician, the primary carephysician agreed to accept the patient back at the nursinghome instead of admitting him to the hospital. Thepatient’s blood sugar would be treated with the standingorders for insulin. A neurological exam conductedby an ED nurse just before the patient was dischargedwas documented as normal.After less than one hour in the ED, the patient wasdischarged back to the nursing home with orders to resumeexisting medications and contact the primary carephysician for further orders. Two hours later, the nursinghome staff contacted the primary care physician. Hegave oral orders to obtain blood work and a urinalysis.A urine sample was obtained but the sample was neversent to the lab. The blood for the lab work was neverobtained.An hour passed and the patient’s condition began todeteriorate. His blood pressure dropped to 99/62 mmHg, his pulse was 80, and respirations were 24. Threehours later a nurse documented that the patient was encouragedto go to the hospital, but he refused. Thirtyminutes later, the nurse’s notes showed the patient’sblood pressure to be 154/86 mm Hg; pulse 119; respirations40; temperature 97.6 degrees; and oxygen saturation80% on room air. His speech was recorded as garbled,and there is documentation of the patient’s refusalto go to the hospital for further evaluation. Oxygen wasadministered at 2 liters via face mask.Another three hours went by and recorded vital signswere blood pressure 154/86 mg Hg; pulse 119, respirations40; temperature 97.6 degrees; and oxygen saturation80%. The chart entry described the patient’s speechas garbled and noted his refusal to go to the hospital.Four hours later, the patient’s oxygen saturations weredown in the 60s with shallow and labored breathing.The nurse documented that she asked the patient to goto the hospital several times and he refused. One hourlater, the patient was found with no blood pressure,pulse, or respirations. The primary care physician wascalled. He pronounced the patient dead via telephone.An autopsy was not performed and the cause of death isunknown. It was theorized that his death was related tohis untreated elevated blood sugar.continued on page 2


continued from page 1AllegationsA lawsuit was filed against the emergency medicinephysician alleging that the patient was septic at the timeof his visit to the ED, and that he should have been admittedwith testing performed to diagnose and treat thesepsis.Legal implicationsThe plaintiff’s expert testified that the patient’s historyof unintelligible speech, lethargy, and abnormalvital signs warranted further evaluation by the defendant.It was this physician’s opinion that the patient wasbacteremic from a urinary tract infection when he cameto the ED. The defendant should have ordered a CBC,chemistry panel, and a urinalysis. He did not agree thatuntreated hypoglycemia caused the patient’s death, buthe believed the patient died from sepsis.The physicians who reviewed this case for the defenseexpressed mixed but supportive opinions of thecare the patient received from the defendant. Some reviewersstated there was a lack of testing done in theED. It was felt that the patient’s DNR status may haveclouded the caregivers’ judgment, and treatment waswithheld instead of being carried out in the hospital.It was believed that a definitive diagnosis should havebeen identified before transferring the patient back tothe nursing home.Other physicians reviewing this case disagreed withthose criticisms and felt the defendant met the standardof care. They stated that there were no signs or symptomsin the ED that mandated admission to the hospitalfor further testing. The overall consensus from thesephysicians was that the nursing home care was substandard.Sliding scale insulin was not administered uponthe patient’s return to the nursing home. Blood tests thathad been ordered by the primary care physician werenever obtained and the urine sample was collected butnever sent to the lab. The nursing home staff did not notifythe primary care physician when the patient’s conditionbegan to deteriorate and he refused to go back tothe hospital.DispositionThis case was taken to trial and the jury returned averdict in favor of the defendant.Risk management considerationsOne area of concern in this case is the period of time,less than one hour, that the patient spent in the ED beforebeing transferred back to the nursing home. Physiciansreviewing this case questioned whether this was enoughtime to conduct an adequate assessment of the patient’scondition. However, this concern was mitigated by thedefendant’s thorough documentation of the patient assessments,testing, communication with other providers,and the rationale for decisions. This documentationwas helpful in the defense of this claim.The nursing home should investigate whether or notwritten policies and procedures exist relating to emergenciesand changes in patients’ conditions. If such policiesand procedures do exist, these should be reviewedannually to determine if revisions are necessary. If not,such policies should be developed and implementedwith proper education and training of staff memberswho are directly involved in patient care. Lastly, it isimportant to remember that do not resuscitate does notmean do not treat.It is also worth noting that the defendant initiallyagreed with the computer’s interpretation of the EKG.However, during the investigation of this claim, he reviewedthe report again and testified that the results ofthe EKG were normal. A cardiologist who reviewed theEKG also believed that the results were normal and thatthe computer misinterpreted the results.Although technology is improving and the marginfor error is narrowing, it is important to remember thatit is still possible for computers to misinterpret results.Physicians should always take time to personally reviewthe data and not rely solely on the machine’s interpretation.Physicians must not forget that their very ownknowledge and skills may be the tools that are neededto provide the necessary care for patients.Robin Desrocher can be reached at robin-desrocher@tmlt.org.Want to read more TMLT closed claim studies?Case Closed: A collection of TMLT closed claim studies, Volume 1, Volume2, and Volume 3 are currently available. Physicians can earn 4 hours ofCME—including 1 ethics hour— by completing the CME activity inCase Closed. . TMLT policyholders who complete this activity will earn a3% premium discount (maximum $1,000) applied to their next eligiblepolicy period.Request a free copy of Case Closed Volume 1, Volume 2, or Volume 3 byemailing claimbook@tmlt.org. Please include your name andmailing address in your email.2 the Reporter Emergency Medicine 2009


tmltperspectiveTMLT continues fight to maintain medical liability reformby Dana Leidig, ABCOn September 13, 2003, the citizens of Texas voted onProposition 12 which determined whether the Texas Legislatureshould have the right to set caps on non-economicdamages in medical liability cases. This legislation passedand along with House Bill 4, dramatically reformed themedical liability system in the state. In February 2008,the Texas Medical Association (TMA) along with JohnMcKeever, MD, filed suit in Travis County in response toa liability lawsuit filed against Dr. McKeever in NuecesCounty claiming the $250,000 non-economic damage capis unconstitutional. The appeal process for constitutionalchallenges to the 2003 tort reforms allows that, regardlessof the county of origin of the plaintiff’s constitutionalchallenge, the defendant physician may file a suit in TravisCounty to address the issue. This case was heard inTravis County and a declaratory judgment action determinedthe cap to be constitutional.This was not the only constitutional challenge mountedin 2008, though none have yet proved successful. Theseearly challenges may be harbingers of a bigger, more organizedstorm to come when the Texas Legislature convenesin January 2009. There may be a strong effort byopponents of medical liability reform to weaken importantaspects of this legislation. In order to keep the 2003reforms that have helped cut both non-meritorious claimfrequency and medical liability premiums in half and thathave brought approximately 7,000 new physicians to Texasto care for Texas citizens, it’s essential that the strongcoalition that achieved these landmark reforms five yearsago remain active and vocal.Grassroots efforts workIn the fall of 2001, TMLT and the TMA, the Texas HospitalAssociation, many county medical societies and specialtysocieties, physician groups, and other stakeholdersjoined together to form the Texas Alliance for Patient Access(TAPA). TAPA was dedicated to solving the problemsof declining access to health care in Texas by analyzingmedical liability laws and proposing changes that couldreform the medical liability system. At that time, TAPAmembers worked tirelessly throughout the state to educatephysicians about the issues. TMLT executives werepart of the team, traveling from Brownsville to El Paso,Dallas to Houston to Texarkana to make presentations tophysicians working in these locales.In conjunction with TAPA, TMLT executives were alsopart of the team making presentations to the Texas HouseInsurance Committee to help legislators understand thecritical nature of the issues. As physicians became moreinformed, the battle heated up. In April 2002, physiciansattired in their white coats participated in an organizeddemonstration in the Rio Grande Valley and later in awhite coat march on the state capitol to draw public attentionto medical liability issues.Achievements we cannot afford to loseAccording to the Pacific Research Institute’s Tort LiabilityIndex: 2008 Report, “the states that have the best overalltort rules on the books, and that will be heading in the rightdirection if the rules are fully implemented, are Colorado,Texas, Ohio, Georgia, Indiana, Florida, and Michigan.” 1 Itis vital to keep the Texas medical liability reforms intactand unchanged in order to control costs and encouragecompetition in the medical liability insurance industry. Inthe years following medical liability reform, the numberof medical liability insurance carriers grew from 4 to 30,providing physicians greater choice and encouraging responsiblerate setting among carriers.What reforms mean for physiciansAfter five years, the positive effects of medical liabilityreform for both physicians and patients are clear: lowermedical liability rates, decreased claims frequency andfewer non-meritorious lawsuits, more physicians movingto Texas, expansion of health care services, and greater accessto health care for patients.TMLT was the first medical liability carrier to lowerrates for Texas policyholders. Subsequently, other medicalliability insurance carriers followed with rate reductions.TMLT has decreased rates six times since medical liabilityreform was enacted, including a 4.7% average ratereduction effective January 1, 2009 setting the trends forother carriers. The cumulative premium savings by TMLTpolicyholders will exceed $275 million since January 2004.TMLT was also able to return savings to its policyholdersthrough dividends. Since the first dividend was declaredin 2005, TMLT policyholders have saved approximately$105 million with dividend credits off renewal premiums.Claims frequency at TMLT—including mass litigation—hasdeclined from 22.82% in 2002 to 9.46% in 2007.The number of cases taken to trial has also declined from76 in 2002 to 23 in 2008. The percentage of claims closedwithout indemnity has increased from 86.89% in 2002 to89.42% in 2007. Bob Fields, president and CEO of TMLT,stated in the 2007 annual report that in 2007 there werefewer frivolous and non-meritorious claims to defend.These good results must be guarded carefully however.They are largely the result of the $250,000 cap onnon-economic damages. According to TAPA, “any changeto the non-economic damage cap will increase cost andfrequency of suits and would reduce access to care.” 2More physicians are available for Texans who needthem in their communities. According to an article publishedby the TMA, “The Texas Medical Board licenseda record 3,621 new doctors this fiscal year; 9 percentmore than last year’s previous record of 3,324. Texas haslicensed 14,499 new physicians post-reform.” 3 This in-continued on page 4Emergency Medicine 2009 the Reporter 3


theReporterTEXAS MEDICAL LIABILITY TRUSTP.O. Box 160140Austin, TX 78716-0140800-580-8658 or 512-425-5800E-mail: laura-brockway@tmlt.orgwww.tmlt.orgPre-sorted StandardU.S. PostagePAIDPermit No. 90Austin, TexasEditorial committeeBob Fields, President and CEOJill McLain, Senior Vice President, Claim OperationsDon Chow, Senior Vice President, MarketingJane Holeman, Vice President, Risk ManagementDana Leidig, Vice President, Communications & AdvertisingEditorJane HolemanManaging EditorBarbara RoseStaffRobin Desrocherthe Reporter is published by Texas Medical Liability Trust asan information and educational service to TMLT policyholders.The information and opinions in this publicationshould not be used or referred to as primary legal sourcesor construed as establishing medical standards of care forthe purposes of litigation, including expert testimony. Thestandard of care is dependent upon the particular facts andcircumstances of each individual case and no generalizationscan be made that would apply to all cases. Theinformation presented should be used as a resource, selectedand adapted with the advice of your attorney. It is distributedwith the understanding that neither Texas Medical LiabilityTrust nor Texas Medical Insurance Company are engaged inrendering legal services. © 2009 TMLT.continued from page 3cludes specialties such as neurosurgery, orthopedic surgery,trauma surgery, emergency medicine, obstetrics, andpediatric subspecialties whose numbers in Texas were decliningbefore tort reform. TMA’s article also states thatmany physicians are now confident in offering servicesto patients considered high risk. “Many physicians reportadding new in-office procedures and testing, nursing homecoverage, and after-hours services. Others say they are nowproviding more charity care, participating in volunteerprograms, and accepting more Medicaid and Medicare patientsbecause of the liability reforms.” 3On-call for tort reformAs the legislative session opens in January 2009, physiciansmust again be prepared to defend these medical liabilityreforms. The importance of keeping reforms intactcannot be overemphasized. Your local county medical orspecialty society can provide you with information as thelegislative year progresses, or visit www.texmed.org forcurrent news on the issues. The TMA web site also is a goodresource for materials suitable for making presentations tophysician groups. The TAPA web site, www.tapa.info, willhave legislative updates as well as a library of news articlesfrom around the state. Stay informed. Write letters to yourstate senator and representative expressing your concernsand encourage your colleagues to do the same. Lawmakersneed to be reminded how much medical liability reformhas meant to physicians and their medical practices, and topatients who have greatly improved access to health care.Sources1. McQuillan LJ, Abramyan H, and the Pacific ResearchInstitute. U.S. Tort Liability Index: 2008 Report. Availableat http://special.pacificresearch.org/pub/sab/2008/Tort_Index/. Accessed December 3, 2008.2. Texas Alliance for Patient Access. TAPA opposed thefollowing bills in the 2007 legislative session. Available athttp://www.tapa.info/html/Bills_we_Oppose.html. AccessedNovember 24, 2008.3. Texas Medical Association. Liability Reforms BringMore Care, More Doctors to Texans. Available at http://www.texmed.org/Template.aspx?id=7071. Accessed November23, 2008.Dana Leidig can be reached at dana-leidig@tmlt.org.4 the Reporter Emergency Medicine 2009

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