Wednesday, October 24, 2007

Law and Medicine Rounds

By Dainius A. Drukteinis, M.D., J.D.

“The only real mistake is the one from which we learn nothing.”
- John Powell

Emergency Medicine

Dead End Consultations

There are limitations to the types of interventions that an emergency medicine physician should perform. For that reason, emergency medicine physicians call consults. At times, the emergency department faces resistance by consultants. What happens when a consultant refuses to perform a necessary intervention? What is the emergency physician’s responsibility in such a situation? Does proper documentation relieve the physician of liability?

These were the questions facing a physician in Baton Rouge, Louisiana. In Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 1986 La. LEXIS 7840, a nineteen-year-old male was stabbed in the chest and brought to Baton Rouge General Hospital. The patient arrived without vitals signs. The physicians in the emergency department placed a chest tube for hemopneumothorax. They also started an IV and administered two units of whole blood. They restored the patient’s vital signs to a blood pressure of 100/62, heart rate of 60, and respiratory rate of 36.

The attending physician concluded that a thoracotomy was still necessary. The emergency physician was not qualified by training or experience to perform the thoracotomy. He therefore contacted the thoracic surgeon on call. The thoracic surgeon asked the physician if the patient had insurance. The patient did not, and the thoracic surgeon told the physician to transfer the patient to another hospital. The emergency physician believed that a thoracotomy could stop the bleeding and save the patient’s life. Frustrated with the surgeon, he prepared to transfer the patient to another hospital. A transfer was attempted, but the patient died. The patient’s family sued multiple parties.

The trial court directed a verdict in favor of the emergency physician. The case was not heard by the jury. The Supreme Court of Louisiana, however, reversed the decision and decided that a jury should hear the case. The evidence demonstrated that the patient needed an emergent thoracotomy, and that the patient was not stable for transfer. The Court stated that if the on-call surgeon failed to arrive, it was the emergency physician’s responsibility to contact the chief of surgery to attempt to obtain another surgeon. In other words,
...his avenues of intervention were not exhausted
. The Court held that a jury should decide the extent of the physician’s liability even if the patient’s chances of survival were minimal. Today, transferring an unstable patient to another hospital would also be an EMTALA violation.

When an emergency physician is unable to obtain a consultant or effect appropriate treatment from a consultant, the physician should not immediately assume that there is a dead end, and begin documenting frantically to avoid liability. At times, the emergency physician will have to “think outside the box” and find alternative means to obtain the necessary specialist for the patient without placing the patient in further danger. Failing to do so may expose the physician to medical malpractice liability, regardless of the extent of documentation.

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital and author of Law and Medicine Rounds. He may be contacted at


isles said...

Seems like a pretty high standard they're setting for the physician. Even incorporating the knowledge of a physician into the reasonable person standard, should we expect "thinking outside the box" in an emergency situation? What might seem like a simple solution to someone presented with a neat set of facts and unlimited time to think about it is not necessarily going to occur to someone in the middle of a trauma.

Dainius said...

Your point is a good one. Under the stress of the situation, the emergency medicine physician may not have considered calling the chief of surgery to summon another surgeon for the thoracotomy. It was not clear how well the policy was understood in this case, but apparently the hospital had a written policy that if a consultant can not be obtained, the chief of service should be notified. The emergency physician claimed he was not familiar with that policy.

Regardless, when our effort to provide a patient with a necessary intervention seems to fall victim to hospital "sabotage," we must consider other ways to reach our goal within our own hospital. In this case, it may have been reaching the chief of surgery. In another case, it may be bypassing the initial intern or resident on call. We should try not to throw up our arms when we reach a dead end consult. Of note, this case never made it to a jury, which indicates that the parties may have settled.

Wyatt said...

Was the on-call surgeon not sued (or at least fired) as well? I didn't think that hospitals were allowed to refuse emergency care to the uninsured. If they are, and that was the surgery department's policy, there's no reason to think that the chief of surgery would have acted differently. It seems to me that the ER doc didn't really submit to a "dead end" -- he arranged for emergent transfer of the patient rather than admitting him with conservative management. If he thought the patient was stable enough for transfer, then the question is less should he have contacted the chief of surgery which would have been time consuming in its own right, than was his judgment on the patient's stability negligent or not.

Dainius said...

Wyatt, excellent comment and good pick-up. The thoracic surgeon was sued as well. I just focused on the case involving the emergency medicine doctor. This was a much uglier situation for the surgeon. The surgeon's case did not appear to make it to court, either, which suggests that there was probably a settlement, a big settlement. Remember, this case was only to determine if a jury should hear the claim that the emergency physician was negligent. The judge initially threw the case out. All of the points you make would be in favor of the emergency medicine doctor and would be weighed by the jury. Nevertheless, the doctor pretty clearly transferred an unstable patient. This is BOTH an EMTALA violation as well as malpractice. That is, unless the emergency physician can truly convince the jury that there was no other option . . . which there might have been according to hospital policy.

NocturnalRN said...

I think the on call surgeon should be the one sued. That sucks the attending didn't have the instinct to do more or try harder for this patient.

Dainius said...

You are right, and the on-call surgeon was also sued. I was focusing the discussion on the suit involving the emergency medicine physician. Regarding the emergency medicine physician, it is easy to see how you might feel that you have reached a "dead end" when the consult refuses to see the patient. Perhaps he would have had more success if he had called the chief of surgery.

Anonymous said...

NY is a one party telephone recording state. That means if you have a way of recording the conversation with the consultant, you may do so without notifying the consultant that you are recording. Email the conversation to yourself and append it to the chart as well as keeping it in your "trouble file." You do have a trouble file, don't you?

Chrysalis Angel said...

Something to keep in mind, from your last commenter.