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

EMTALA
What is the
"Appropriate Medical Screening Examination"

Chances are if you are an emergency medicine physician or nurse you have probably heard of the acronym EMTALA. Even without knowing what it stands for, you likely shudder at the mere mention of the word, with its authoritative ring as if bellowed from a voice up above . . . E-M-T-A-L-A. If a senior physician tells you, “That violates EMTALA,” you don’t ask questions. You simply look down and respond “Yes, Sensai, it will not happen again.” If you have been in the emergency medicine field a few years, you probably know that EMTALA prohibits a hospital from turning patients away from the Emergency Department, and it also prohibits transferring unstable patients to another facility. You know that a violation of EMTALA means bad things will happen. What those bad things are, however, you are not sure. This is usually the extent of people’s knowledge because to know more would require reading the EMTALA statute, both boring and confusing, or court case opinions, more boring and more confusing.

This article introduces the basic concepts of EMTALA by providing a brief history of the statute with its original purpose, a discussion of the statute’s actual form, and subsequent interpretations of EMTALA based on cases. It is written in non-legal fashion, with details in the endnotes for those of you for whom “seeing is believing.” It then challenges your understanding of EMTALA by having you work through a real case before being given the Court’s rationale for its opinion. It will hopefully answer basic questions you have regarding the application of EMTALA, specifically the requirement to perform an “appropriate medical screening examination.” It does not discuss details regarding transferring unstable patients. Do not read this article if you think it will give you EMTALA peace. It will only lead to more questions, as any discussion of legal principles invariably leads to more questions than answers. For the obsessive-compulsive, welcome to the EMTALA black hole.

In the mid-80s, Congress became concerned with reports of emergency rooms refusing medical care to patients without insurance. Hospitals were turning patients away, and transferring unstable patients to other facilities, due to lack of insurance. The practice of refusing to administer medical care or transferring an unstable patient without insurance became referred to as “patient dumping. ” In response to these concerns, Congress enacted the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA). EMTALA imposes penalties on Medicare and Medicaid participating hospitals for: 1) failure to afford appropriate medical screening to any person who comes to its emergency room, or 2) if an emergency medical condition exists, the hospital fails to render the services necessary to stabilize the patient’s condition.

The keen eye will notice that the statute is not limited to protecting patients without insurance, despite its original intent. It states that an “appropriate medical screening” is required for “any individual [who] comes to the emergency department. ” As discussed above, and recognized by the Circuit Courts, EMTALA was initially enacted to prevent emergency departments from “refusing to accept or treat patients with emergency conditions if the patient does not have medical insurance. ” Perhaps Congress meant for the statute to only include patients without insurance, even though the statute was not written to that effect?

As EMTALA cases arose, hospital attorneys jumped on the above argument, claiming that a patient must demonstrate an “improper motive,” such as lack of insurance; indeed the initial impetus of EMTALA. This strategy, however, was almost universally rejected. Courts decided that despite the initial intent of EMTALA, the final statute does not state that an “improper motive” is required, and its protections are not limited to people without insurance. Not only does the statute specifically protect “any individual,” but also, if an “improper motive” was required, “proving the inner thoughts and prejudices of the attending medical staff” would be “virtually impossible. ” As it was drafted, “EMTALA was enacted to fill a lacuna in traditional state tort law by imposing on hospitals a legal duty (that the common law did not recognize) to provide emergency care to all. ” “[EMTALA’s] core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy because traditional medical malpractice law affords no claim for failure to treat. "

The next hurdle that Courts faced was the definition of an “appropriate medical screening examination.” How would a patient show that a physician did not perform an “appropriate medical screening examination? If it was simply demonstrating that the doctor made an incorrect diagnosis, then federal EMTALA claims would appear very much like state medical malpractice claims, traditionally governed by state law. Was EMTALA giving patients two cracks at the same case, one in federal court under EMTALA and one in state court under malpractice principles? The Circuit Courts did not believe that it was the intention of Congress to “substitute state-law malpractice actions” or “duplicate preexisting legal protections. ” The Eighth Circuit Court explained: “Something more than, or different from, ordinary negligence in the emergency-room screening process must be shown to make out a federal claim under EMTALA. ” The Courts eventually came to the conclusion that to prevail on an EMTALA claim, the patient must demonstrate that there was some form of “disparate treatment,” or that the patient was not treated “uniformly” as other patients in the Emergency Department, not simply that there was a missed diagnosis. One Circuit Court defined an “appropriate medical screening examination” as an exam “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provide that level of screening uniformly to all those who present substantially similar complaints. ”

Did those definitions for an “appropriate medical screening examination” really distinguish EMTALA from malpractice claims? If a physician is careless with one patient, and is not careless with the rest, could it be both malpractice and an EMTALA violation? The answer is yes, there may be an overlap. The failure to perform an “appropriate medical screening examination” may be tantamount to malpractice, but not every malpractice claim is an EMTALA claim. One Court explained:

Consider a situation in which a hospital adheres to a standard requiring tests A, B, and C as part of an appropriate emergency room medical screening. In many instances, this standard will also be the malpractice standard of care. Thus, failure to perform test C, for example would violate both EMTALA and the standard of care applicable in a malpractice claim. But if tests A, B, and C are performed and the doctor evaluating the results draws an incorrect conclusion, a violation of EMTALA may not be established, but medical negligence may be.

In essence, EMTALA only requires that the appropriate tests are ordered and the appropriate history and examination performed. It does not require a correct conclusion from the results and examination performed.

In March 2008, the Department of Health and Human Services, Centers for Medicare and Medicaid Services, established guidelines for EMTALA. The guidelines incorporated the very ideas of uniformity among patients and the prevention of disparate treatment previously described by the Courts. The guidelines state that the screening exam “must be the same [exam] that the hospital would perform on any individual coming to the hospital’s dedicated emergency department with those signs and symptoms” and it must be “reasonably calculated to determine whether an Emergency Medical Condition exists. ”

So what are the repercussions for violating EMTALA? For a statute with so much attention, there must be dire consequences. To enforce the provisions, Congress predicated a hospital’s Medicare reimbursement on compliance with EMTALA. The loss of Medicare funding would pose an enormous financial burden on a hospital for an EMTALA violation. EMTALA also includes a $50,000.00 fine against a hospital and $50,000.00 fine against a treating physician for each EMTALA violation committed. In addition, EMTALA requires the hospital to compensate the patient and family for damages incurred. Individual physicians, on the other hand, while they may be fined, are not individually responsible for compensating a patient or family for damages under EMTALA. Of course, individual physicians may be liable for a patient’s damages based on malpractice principles.

Now consider a case based on the principles outlined above. This case was decided by the Fourth Circuit in Power v. Arlington Hospital Association, 42 F.3d 851 (4th Cir. 1994). Keep in mind that this case was decided prior to the promulgation of the 2008 Interpretive Guidelines of EMTALA cited above. Nevertheless, the new guidelines do not seem to contradict the reasoning of the Fourth Circuit here.

As per the Court, at 5:45 a.m. a 33-year-old unemployed and uninsured female from Great Britain was brought to an Emergency Department by her fiancé. Her lack of health insurance and unemployment were indicated on the front of the chart. She was complaining of pain in her left hip, left abdomen, and in her back running down her left leg. She stated that she was unable to walk, was shaking, and had severe chills. The patient also had a sizeable boil on her left face that was not seen by the medical staff, nor was it mentioned in the medical chart.

A nurse took a history, performed a nursing assessment, and also collected urine for a “dipstick” urinalysis. The Court’s opinion did not elaborate on the nursing assessment. A doctor then examined the patient. He spoke with the patient, ranged her hip, performed a motor exam, and also a leg extension test. In the chart, the exam of her hip was described as normal. The physician also ordered x-rays. Details regarding the rest of the physician’s physical findings were not provided in the Court’s opinion. A second nurse then completed the patient information data and took vital signs, including blood pressure. All of the vital signs were normal at that time.

According to the Court, at the change of shift at 7 a.m. a second doctor examined the patient. He did not review the patient intake information in the chart. He did note that the patient was complaining of left hip pain of unknown etiology. He performed a neurological examination, and concluded that her pain was localized to the left hip and was musculoskeletal in nature. He believed that the patient looked uncomfortable, but not toxic. He did not believe she was ill, and he did not believe that she had an infection. Nevertheless, he ordered an official urinalysis without any other blood work or diagnostic procedures.

The second physician discharged the patient before the results of the urinalysis. He prescribed her anti-inflammatory pain medication, and instructed the patient to return if her pain became worse. He failed to record the results of the x-ray on the chart. The results of the x-rays were also absent from the Court’s opinion. Later, after the patient was discharged, the physician followed up the results of the official urinalysis. It showed the possibility of a mild infection. The doctor then sent a urine culture from the same sample to verify the result.

By the time the urine culture results were ready the next day, the patient had already returned to the emergency department. The patient was in severe septic shock. She required vasopressors for her low blood pressure, and antibiotics. She was eventually admitted to the Intensive Care Unit where she remained for four months. She was on life support equipment. She had both legs amputated below the knees due to loss of circulation secondary to sepsis. She also lost sight in one eye, and developed severe and permanent lung damage. She was eventually transferred to a hospital in her hometown in England.

An orthopedic surgeon testified at trial that the patient’s hip was not the problem. An infectious disease specialist concluded that the patient had a blood infection secondary to lancing the boil on her face 10 days prior to her initial visit. A qualified emergency medicine expert and an infectious disease expert testified that appropriate blood tests would have most likely revealed a blood infection.

Consider the following:

1) Is lack of insurance necessary for an EMTALA violation?
2) Did the medical staff violate EMTALA by not performing an “appropriate medical screening examination?”
3) Are the physicians responsible for the patient’s damages under EMTALA?
4) Is the hospital responsible for the patient’s damages under EMTALA?
5) What are the other potential consequences to the hospital for violating EMTALA?
6) Did the physicians commit medical malpractice?
7) If so, are the physicians responsible for damages to the patient based on medical malpractice principles?
8) Can a physician violate EMTALA and commit medical malpractice?

1) Is lack of insurance necessary for an EMTALA violation?
No. The Fourth Circuit stated, “there is nothing in the statute itself that requires proof of indigence, inability to pay, or any other improper motive on the part of a hospital as a prerequisite to recovery. ” The statute protects “any individual” who seeks emergency medical care.

2) Did the medical staff violate EMTALA by not performing an “appropriate medical screening examination?”
Yes. The jury at trial found that Arlington hospital violated EMTALA. The Fourth Circuit was unwilling to reverse this finding. The Court stated that a jury could have reasonably concluded “a blood test was a necessary component of an appropriate medical screening examination at Arlington Hospital, for a patient who presented at the emergency room with the patient’s symptoms.”

3) Are the physicians responsible for the patient’s damages under EMTALA?
No. EMTALA does not hold physicians responsible for patient damages under EMTALA. A physician may be fined up to $50,000 for an EMTALA violation, but the physician can not be sued by the patient for damages. Here, the trial court dismissed the physicians from the EMTALA case.

4) Is the hospital responsible for the patient’s damages under EMTALA?
Yes. A hospital is responsible for compensating a patient and family for damages under EMTALA. In this case, the jury returned a verdict of $5 million for the patient against Arlington Hospital. This amount, however, was eventually reduced because of the State of Virginia’s caps on damages in medical malpractice-related cases.

5) What are the other potential consequences to the hospital for violating EMTALA?
The hospital could lose its Medicare funding for violating EMTALA, which would pose an enormous financial burden. The hospital may also be fined $50,000.00 for every EMTALA violation. These penalties were not discussed in the civil action above.

6) Did the physicians commit medical malpractice?
Although not specifically decided by the Court, the answer is most likely yes. The physicians here failed to perform an “appropriate medical screening examination” and a patient was harmed as a result. The physicians are most likely liable under medical malpractice principles.
7) If so, are the physicians responsible for the damages to the patient based on medical malpractice principles?
Yes. Under medical malpractice principles, a physician is liable for damages to a patient as a result of the physician’s negligence.
8) Can the physician both violate EMTALA and commit medical malpractice?
Yes. EMTALA violations and medical malpractice principles can overlap. If a physician carelessly fails to perform an “appropriate medical examination,” the Court can also find that the physician committed medical malpractice

Please click here for the REFERENCES used for this article.

Dainius A. Drukteinis, M.D., J.D. is an Attending Physician at MetroHealth Medical Center in Framingham, MA and author of Law and Medicine Rounds. He may be contacted at ddrukteinis@gmail.com

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

The Cyanotic Child
Systems Failures in the Emergency Department

In MacDonald v. Chestnut Hill Hospital, 903 A.2d 61, 2006 Pa. Super. LEXIS 2061 (Pa Super. Ct. June 1, 2006), a family alleged multiple systems failures in the treatment of their newborn baby girl.

On October 25, 2000, Erin MacDonald was born without complication at Chestnut Hill Hospital. The parties dispute whether the baby was feeding properly and whether she was overly sleepy, but everyone agreed she appeared outwardly healthy. She was discharged two days later from the hospital. While at home, Erin had a brief cyanotic episode. Mom called 911 and Erin was transported back to the hospital’s Emergency Department. Ambulance workers noted that Erin’s color was normal and she appeared stable. In the Emergency Department, Erin’s temperature, blood pressure, and respirations were normal, and her condition also appeared stable to the attending physician. Due to her cyanotic episode, however, the attending physician felt that Erin should be admitted.

Arrangements were made with Erin’s pediatrician to transfer her to another hospital with a pediatric floor. Erin’s temperature at the new hospital was 100.9 degrees on arrival. The physicians were concerned that Erin was septic. Labs drawn at the new hospital revealed that Erin was in fact hypoglycemic. A “heel stick” confirmed hypoglycemia and a dextrose infusion was begun. During treatment, she had multiple seizures and suffered permanent brain damage. Erin was eventually diagnosed with congenital hyperinsulinism.

One of the many allegations of the MacDonald family was that if a “heel stick” had been initially performed in the Emergency Department, Erin’s glucose would have been controlled more quickly, thus preventing subsequent seizures and brain damage. An expert witness testified that the hospital had protocols for obtaining a “heel stick” which were not followed by the medical staff. In the end, however, the jury found in favor of the physicians despite evidence of negligence, because the negligence was not the cause of the harm suffered.

If Erin did not have congenital hyperinsulinism, the jury could have easily found in favor of the MacDonalds. In such a circumstance, the jury may have agreed that Erin’s hypoglycemia could have been more quickly diagnosed and more easily controlled, thus avoiding brain damage from seizures.

A fingerstick is often thought of as the sixth vital sign. It is well-recognized that altered mental status or neurologic deficits are often the result of hypoglycemia, and can be completely reversed with prompt administration of dextrose. It is for this reason that the hospital had protocols in place for performing “heel sticks,” and the staff, if speaking candidly, would probably agree that a “heel stick” would have been appropriate even in the above case. Furthermore, obtaining one drop of blood from a “heelstick” has almost no risk of an adverse consequence.

So why did the system fail? Was there a lack of automaticity to the system? Did the system rely on the staff to make a decision for a simple diagnostic intervention that should have been thoughtless?

It is hard to believe that a physician or nurse would have actively decided that Erin did not require a fingerstick for her cyanotic episode. It was most likely a simple failure to think of the intervention.

Whatever the source of error, systems should be designed not to eliminate human error, but embrace it. A system should anticipate human error, as in the above case, and insure implementation of simple interventions in well-defined situations. For instance, checking vital signs on every patient entering the Emergency Department, regardless of chief complaint, is one of our most basic systems for preventing patients with serious illness from being missed. At times, the system should cast a larger net than the individual medical decision-maker to prevent missing common diagnoses. The system cannot make all of the decisions for medical staff, but perhaps the true decision-making component of medical care should be left to those problems that are more difficult to solve.

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 ddrukteinis@gmail.com

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 ddrukteinis@gmail.com

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

Search and Seizure in the Emergency Department
The Case of the Double Crack

Imagine working in the Emergency Department and a patient with handcuffs is escorted by police officers into one of the bays. The officers state that during a strip search, they witnessed the patient remove rocks of crack cocaine hidden in the patient’s rectum, place the crack rocks in his mouth, and then swallow them. The officers tell you that they would like the patient’s stomach pumped. The patient states that under no circumstances does he want his stomach pumped. The officers insist you comply or they will arrest you for obstruction of justice. How would you proceed?

This was the situation in Stokes v. Porretto, 2006 U.S. Dist. LEXIS 71060 (September 2006). The physician performed the requested gastric lavage and removed the crack cocaine against the patient’s will. The patient sued the physician arguing, among other things, that the gastric lavage violated his Fourth Amendment protection against unreasonable search and seizure. The federal district court held that the gastric lavage did not violate the patient’s constitutional rights.

In this case, the record demonstrated that the physician performed the procedure because the patient’s heart rate and blood pressure were markedly elevated to 138 beats per minute and 197/100 mm Hg, respectively. The patient also became increasingly disturbed, and started thrashing, flailing, and screaming. The physician believed that the patient could suffer serious injury or death if the contents were not removed from his stomach. Furthermore, he felt that the patient was unable to make a rational decision regarding his treatment due to his condition. The court agreed with the physician.

The federal district court distinguished the facts of this case from the landmark Supreme Court case Rochin v. California, 342 U.S. 165 (1952). In Rochin, police officers witnessed the patient-suspect swallow two capsules containing morphine. When the suspect was brought to the hospital, the physician gave the patient an emetic by nasogastric tube to remove the capsules. There was no evidence that the capsules posed a physical threat to the patient. There was no evidence that the patient lacked capacity to refuse the procedure. The nasogastric tube was placed, and the emetic was administered, solely for the purpose of obtaining evidence. In Rochin, the Supreme Court held that the physician’s actions violated the patient’s constitutional rights stating that this method to obtain evidence would “offend even hardened sensibilities” and is “too close to the rack and screw to permit constitutional differentiation.”

For the Emergency Medicine Physician, both of these cases could be handled properly without any prior knowledge of the law. The critical question is:

What is best for the health of the patient?

Admittedly, there are more appropriate methods for handling cocaine ingestion than gastric lavage. Nevertheless, gastric lavage is still performed by some physicians to remove harmful substances, and this was the method that the physician felt was appropriate under the circumstances. Therefore, because the physician’s actions in the first case were justified from a medical care standpoint, his actions were also justified under the law.

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital. He may be contacted at ddrukteinis@gmail.com

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

Search and Seizure in the Emergency Department
The Case of the Double Crack

Imagine working in the Emergency Department and a patient with handcuffs is escorted by police officers into one of the bays. The officers state that during a strip search, they witnessed the patient remove rocks of crack cocaine hidden in the patient’s rectum, place the crack rocks in his mouth, and then swallow them. The officers tell you that they would like the patient’s stomach pumped. The patient states that under no circumstances does he want his stomach pumped. The officers insist you comply or they will arrest you for obstruction of justice.

How would you proceed?

Come back tomorrow to find out more...

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital. He may be contacted at ddrukteinis@gmail.com

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

Jury or Administrative Health Court:

Which Would You Choose?

Many physicians are critical of juries adjudicating medical malpractice cases. They attribute the current medical malpractice “crisis,” in part, to jury confusion over complex scientific evidence. In light of this alleged confusion, it is suggested that juries more readily fall for the patient attorney’s arguments. Juries are also perceived as being inherently biased toward the injured patient rather than the defendant physician. The Institute of Medicine suggests removing medical malpractice cases from the hands of the jury, and establishing an Administrative Health Court with experts as panelists. There is current legislation in Congress to establish such a system.

A recent study by the Michigan Law Review questioned these assumptions in Peters PG, Doctors & Juries, Michigan Law Review, 105 Mich. L. Rev. 1453 (May 2007). This was a compilation of three decades of research on medical malpractice jury literature including both large- and small-scale studies.

The results were surprising.

In a 2001 sample of 1,038 medical malpractice trials, only 27% of jury verdicts were for the patient, compared to 52% jury verdicts for injured plaintiffs in personal injury cases as a whole. Based on theories of negotiation and settlements, this appears to be an imbalance. The United States Supreme Court as well as prominent legal scholars has employed the 50-50 win rate to predict a fair adjudicatory process. On the surface, it would appear that the current medical malpractice system favors the defendant physician. This finding, however, was broken down further.

The review demonstrates that the degree of negligence or physician carelessness impacts jury findings. The greater the carelessness, the more likely a jury is to decide in favor of the patient. The review looked at seven studies comparing jury verdicts with independent evaluations by experts. In patient cases deemed weak by experts, patients won only 10-20% of the time. In patient cases deemed strong by experts, patients won only 50% of the time. What does this evidence suggest?

At first glance, 10-20% of weak cases may appear to be high, considering independent experts deemed the patient cases weak. However, this is less than an inter-rater variability of 30%, predicted by numerous studies outlined in the article. Inter-rater variability would predict patients to win in approximately 30% of these cases if they had been adjudicated by an expert. The article suggests that jury verdicts on weak cases are very stringent. On the other hand, in cases deemed strong by experts in favor of the patient, patients won only 50% of the time. In other words, patients lose half of the cases that experts say they should have won.

According to this review, meritless cases rarely win, whereas cases with merit only win half of the time. Based on these results, it may be patients who should argue for Administrative Health Courts, not physicians. It was the conclusion of this review,

“Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them."

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital. He may be contacted at ddrukteinis@gmail.com

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

A Jury of your Peers??

If you were involved in a medical malpractice claim, would you want a jury to hear your case or an Administrative Health Court?

Find out the answer in the next column of Law and Medicine Rounds...

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital. He may be contacted at ddrukteinis@gmail.com

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

Timing in the Emergency Department

From a patient care standpoint, as well as a liability standpoint, the timing of interventions in the Emergency Department is often crucial. In medical malpractice cases, plaintiff’s attorneys highlight unduly long periods of time for critical treatment, and juries may be unsympathetic to prolonged delays. In an Emergency Department bursting with patients, the allocation of time is one of the greatest challenges for the emergency medicine physician.

In O’Shea v. State of New York, 2007 N.Y. Misc. LEXIS 386, a patient presented to an Emergency Department having cut off two fingers with a table saw. The injury occurred at 6:30 p.m. The patient was triaged at 7:19 p.m. The emergency medicine physician saw the patient at 7:42 p.m. X-rays were performed at 11:33 p.m. Orthopedics was finally consulted at 1:00 a.m., more than five-and-a-half hours after the patient presented to the Emergency Department. Orthopedics arrived at 1:30 a.m. The wounds were stitched closed by orthopedics at 2:00 a.m. Reimplantation of the saved digits could not be performed within eight hours from the time of injury as an operating room would not have been available that quickly.

An expert witness in the malpractice case testified that eight hours for reimplantation of digits is

“...about the upper limit without trying to break records”

The emergency medicine physician was found negligent for not contacting orthopedics sooner. Due to this prolonged period of time, among other negligent acts by orthopedics, the patient and his wife were awarded $525,000.00.

In retrospect, it is easy to see how five-and-a-half hours seems too long when we focus all of our attention on one patient, especially in the courtroom. When that time is broken down, however, we see how easily it can occur. Registration of the patient may prevent ordering studies. There are bottlenecks in radiology due to limited resources. The same patient may require other interventions such as labs, antibiotics, and pain medications. Sicker patients in the Emergency Department may divert our attention and require more of our time. This problem is compounded when consults pressure us to “package” patients before they are consulted, i.e. with all of their labs, studies, and radiographs completed.

In the Emergency Department, it is important to recognize system failures and distractions that will undermine timely interventions and consultations. Perhaps “packaging” every patient before contacting the consulting service is unwise. Finally, whatever the systems failure or distraction, it must be remembered that it is the emergency medicine physician who is ultimately accountable for those delays in time. We are responsible for making it happen.

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital. He may be contacted at ddrukteinis@gmail.com

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

Radiology Hearsay in the Emergency Department

How often have you spoken with radiology on the phone before an official report has been dictated? An emergency medicine physician in Louisiana recently found his understanding of radiology findings at odds with the dictated radiology report. See Spillman v. Southwest Louisiana Hospital Association, 2007 U.S. Dist. LEXIS 25547 (April 4, 2007).

In Spillman, a child was brought to an emergency department and a CT scan was obtained to rule out appendicitis. Radiology called an emergency department nurse with the result. The nurse then relayed the result to the attending physician,

“...appendix area looks okay. No mass or inflammation noted.”

Once the patient was discharged, radiology dictated a report which stated,

“POSSIBLE FLUID FILLED DILATED APPENDIX SEEN IN THE RIGHT LOWER ABDOMEN/PELVIS . . . . THE POSSIBILITY OF APPENDICITIS CAN NOT BE EXCLUDED OR CONFIRMED.”

It was later determined that the child had a ruptured appendix.

Whether or not you believe the radiologist changed the findings, this miscommunication could have been further compounded had the nurse told a resident, who then told the attending, who then signed out the patient to the oncoming team.

The scenario quickly begins to look like the childhood game of telephone. It is for this reason that courts frown upon hearsay evidence, and that written communication tends to be given more weight than oral communication. That is not to say we should never rely on oral communications by radiology or other services in the hospital. However, we must be wary that in our desperate need to disposition patients quickly, there are many ways that essential communication can break down and harm our patients.

This case was ultimately decided in favor of the doctor on different grounds.

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital. He may be contacted at ddrukteinis@gmail.com