When a malpractice lawsuit is filed, lack of documentation can significantly complicate the process of proving the patient’s treatment met the standard of care and did not cause the patient’s injury. In the following case, the emergency department (ED) physician failed to adequately document three different aspects of the patient’s care: her disruptive behavior, her departure from the ED against medical advice (AMA), and her follow-up telephone conversation. Each failure complicated the defense of the ED physician’s case.
Allegation
Delayed diagnosis and treatment of the patient’s infection caused permanent heart damage.
Case File
Late on a Friday afternoon, a patient called her primary care physician (PCP). She requested a refill of oxycodone for what she believed was a flare up of her sciatica. She reported it was interfering with her sleep and she felt tired and “jittery.” Because the physician was not convinced the patient’s symptoms were entirely attributable to sciatica-induced sleep loss, due to some mild irregularities in blood test results from a recent visit, and because his office was about to close for the weekend, he refused the patient’s request for a refill and told her to go to the ED.
The patient’s loud, profane complaints started in the ED waiting room. Therefore, she was placed in a private examination room. She demanded to see a physician and obtain a prescription for oxycodone, consistently ordering staff out of the room shortly after they entered. When the ED physician examined the patient and attempted to obtain a history, she dismissed the necessity and demanded a prescription for oxycodone. Based on the history, exam, and recent blood test results forwarded from the PCP’s office, renal insufficiency, dehydration, heart failure, and infection were in the ED physician’s differential, in addition to sciatica. He ordered various tests, including blood cultures, and some non-narcotic pain medication for the sciatica. Ten minutes after the ED physician left the room, he was called back because the patient was threatening to leave.
After additional conversation with the patient, the ED physician believed he had established agreement on his plan of care: The patient would stay in the ED until the test results came back, and they would make treatment plans based on the results. Thereafter, he was called back to the room multiple times as the patient refused lab draws, diagnostic studies, and treatments the ED physician had recommended. The patient also left the room to find the ED physician, presenting at the bedsides of other patients, all the while continuing her tirade and demanding a prescription for oxycodone. Despite the difficulties, nurses were ultimately able to obtain blood samples.
While this was going on, the ED physician was also trying to deal with an electronic health record (EHR) system that was not working properly. His ability to enter orders for blood tests, resuscitative measures, hospitalist consultations, and progress notes into the patient record was affected. The EHR problems resulted in significant delays in the patient’s treatment. Later, the ED physician created progress notes from the various pieces of scratch paper he had relied on. However, he failed to mention the patient’s disruptive behavior, treatment refusal, or threats to leave the ED if she was not provided with a prescription for pain medications.
After three hours in the ED, the patient left AMA, explaining she had come to the ED for an oxycodone prescription, “not a bunch of tests.” The next day, the laboratory reported positive blood cultures to the ED physician, who called the patient’s home. The patient’s husband answered the telephone and informed the physician that his wife refused to speak with him. The ED physician reported the positive results and told him to bring the patient to the hospital for treatment. The husband informed him that the patient had a follow-up appointment with her PCP the next day, and she would discuss the matter with the PCP. The ED physician did not document anything about this call.
Although the patient was seen by the PCP as planned, the PCP had not received the blood culture results or any other information from the ED visit. The patient complained bitterly about her ED visit but provided no clinical information. She did not inform him of the ED physician’s phone call. Since the patient’s sciatica continued to bother her, she denied any other symptoms, and since oxycodone had been effective for the patient in the past, the PCP prescribed it and physical therapy. Three months later, the patient was diagnosed with endocarditis. It was caused by the same bacteria identified during the earlier ED visit. The patient sued all members of her healthcare team for delayed diagnosis and treatment of the infection, which caused permanent heart damage.
Discussion
This patient’s treatment was complicated by multiple issues—her disruptive behavior was only one of them. However, it is possible that more effective management of her behavior may have circumvented her departing the ED, and instead resulted in hospitalization, where her infection most likely would have been treated. The defense of the case was complicated by the ED physician’s failure to document any aspect of the patient’s disruptive behavior, other than the fact that she left AMA.
In deposition, the patient was entirely pleasant and cooperative, and denied disruptive behavior. She testified that she had left the ED due to her extreme discomfort, which was exacerbated by the chaos in the ED. Believing her only problem was sciatica, which had been bothering her on and off for years, she made the decision to “tough it out” until her appointment with her PCP. Based on past sciatica flare-ups, she assumed her PCP would give her the prescription for oxycodone; she would take the oxycodone for a week or so during the worst of the pain; and once the pain subsided, she would stop taking it. She and her husband denied being told about the infection and denied getting a call from the ED physician. The hospital landline to patient landline call history record for the date in question was no longer available, so there was no evidence other than the ED physician’s testimony of the call being made.
Without the documentation of disruptive behavior, the defense team worried that a jury could question the ED physician’s recollection of the difficulties he had obtaining the patient’s cooperation with treatment recommendations. They also believed that the only way the defendants could put forth a united defense at trial would be if the ED physician’s recollection of the events were believed. The jury would also have to be convinced of some basis for the patient and her husband ignoring the ED physician’s recommendation to return to the hospital for treatment and failing to inform the PCP of the infection information relayed to them by the ED physician. Although this might have been the truth of the matter, it would be difficult to argue without documentary evidence.
Risk Reduction Strategies: Documenting Disruptive Patient Behavior
Because of the time that passes between encounters with patients and litigation, clinicians will most likely not remember relevant facts or will remember facts that are not consistent with patient memories or memories of other members of the healthcare team. If there is no documentation regarding the patient’s behavior, advice given, risks discussed, content of telephone calls, etc., the patient’s or a loved one’s testimony about the content of discussions or patient behavior cannot be verifiably disputed.
In addition to supporting the defense in malpractice litigation, adequate documentation of disruptive behaviors promotes healthcare team safety and well-being during future encounters with the patient, by serving as a warning and prompting mitigation measures. Consider the following documentation strategies:
Disruptive Behavior Strategies
- Objectively record the details of disruptive patient encounters in the patient’s record, including your response to the behavior.
- Do not record subjective, judgmental, or derogatory comments about the patient or family members.
- Do not include or refer to incident reports.
- Create a disruptive behavior flag in the EHR, or request that one be created. (“Failure to De-escalate Disruptive Patient Behavior” for detailed strategies)
Leaving AMA Strategies
- Objectively record the details of the encounter resulting in the patient leaving AMA, including:
- An assessment of the patient’s decision-making capacity, including statements attesting to the patient’s ability to understand the risks and benefits, that the patient was given an opportunity to ask questions, and that he or she was encouraged to return
- The patient’s given reasons for leaving
- Communicated benefits of remaining to obtain proposed treatment/observation, alternatives to proposed treatment and leaving AMA, and the risks of leaving AMA that were discussed with the patient
- Your efforts to keep the patient from leaving AMA (e.g., the number of times you returned to reiterate the risks, benefits, alternatives; engagement of loved ones; strategizing with social workers)
- Follow-up instructions (i.e., specific follow-up needed and directions for the patient to follow up with a named clinician on a specific date) and any pending test results
- Instructions to the patient about what symptoms to look for and what to do should his or her condition worsen
- Have the patient sign an AMA form (to support the process, but not replace it) in front of a witness. Scan the form into the medical record and provide the patient with a copy of the signed form.
- If the patient refuses to sign the form, document the refusal.
- Identify any person who accompanied the patient at departure and record additional information provided directly to that person.
Telephone Follow-up Strategies
- Document telephone encounters with the same level of importance as documentation of in-person visits.
- Include the following information when documenting a patient telephone follow-up encounter:
- Patient’s name
- Call recipient’s name if different than the patient (e.g., spouse or child with authority to discuss the patient’s medical information)
- Return phone number
- Date and time of call
- The prompt for the follow-up
- Advice or information given to the patient, including:
- Requests for the patient to come into the office, go to urgent care centers or hospital emergency departments, call back if there is no improvement in their condition or if they have additional symptoms, etc.
- Patient responses to information or recommendations, including refusals
- Possible consequences of failure to follow recommendations discussed with the patient
- Disposition of the call
- Signature and name of the clinician making the call
