By Wayne Wenske, Senior Marketing Strategist, and
Susie Edwards, Risk Management Representative
Presentation
On May 15, a 68-year-old man living in a nursing home complained of right leg pain. The nursing home staff documented that the patient had 2+ edema in his right foot and notified the facility’s consulting internal medicine physician (Internal Medicine Physician A).
The patient had come to live in the center the previous March, after falling in his home and fracturing his right tibia and fibula. The fractures required open reduction and internal fixation. After a hospital stay, he was transferred to the nursing home for rehabilitation and wound care. The patient’s history included Crohn’s disease, hyperlipidemia, hypertension, and depression.
Physician action
On May 15, Internal Medicine Physician A ordered a venous sonogram with Doppler ultrasound and a D-dimer blood test; however, the patient did not agree to have the tests until June 2. The patient’s desire to go on a short trip delayed the testing and lab work.
On May 22, one week after the tests were ordered, Internal Medicine Physician A sent a letter to the facility to inform them that he would no longer be seeing patients at nursing homes. When he left the facility on June 4, Internal Medicine Physician A transferred care of his patients to Internal Medicine Physician B.
On June 2, the D-dimer blood test was drawn. A nurse documented that the patient had no complaints, and his respirations were even and unlabored. On June 3, the patient’s vital signs were normal and there were no reports of pain. However, the patient was experiencing nausea and diarrhea, attributed to his Crohn’s disease. The edema in his right foot was recorded at 1+. The sonogram with Doppler ultrasound was not performed.
On June 4 the D-dimer test revealed a markedly elevated value, suggesting possible deep vein thrombosis (DVT). The patient denied having any pain, and there was no edema present. His respirations were noted as even and unlabored. But the patient did not want to get out of bed. The results were faxed to Internal Medicine Physician A for review.
The patient asked the nurses to request a steroid shot from Internal Medicine Physician A to stimulate his appetite, a treatment related to his Crohn’s disease. The patient was not scheduled to see his gastroenterologist, who typically provided this treatment, until June 14.
Over the next two days, the nurses attempted to contact Internal Medicine Physician A by phone to ask about the steroid shot and a follow up to the D-dimer results. They documented that six attempts were made without response.
Two days later, the patient’s heart rate was noted at 120 bpm. On June 12, the patient’s blood pressure dropped, and he was experiencing tachycardia. Internal Medicine Physician B was notified and ordered IV steroids and fluids. On June 13, the patient was transported to a hospital for a follow-up appointment for his leg fractures. At the hospital, the patient refused certain treatments, including blood work. He also refused to go to the ED.
On June 15, the patient was experiencing emesis with brown vomitus, back pain, and a fever. Internal Medicine Physician B ordered a chest x-ray, urinalysis, and culture. Before the tests were conducted, a nurse found the patient in extreme abdominal pain. The patient was taken to the ED but died during transport.
Allegations
The patient’s family filed a lawsuit against Internal Medicine Physician A and the nursing home and rehabilitation facility with allegations of failure to respond to and treat the patient’s DVT, resulting in the patient’s death from an assumed pulmonary embolism (PE). The cause of death was not verified, as an autopsy was not performed on the patient.
Legal implications
Expert consultants for the defense were mixed in their opinions on the care provided by Internal Medicine Physician A. One consultant who was mostly supportive expressed her concern that Internal Medicine Physician A did not follow up on the Doppler ultrasound. She stated it was his responsibility as the ordering physician to follow up and review the results. She also noted that this test is not elective and would only be ordered if the physician had a high suspicion for DVT, which would need to be addressed promptly.
This consultant was also critical of Internal Medicine Physician A and the nurses for not following up on the D-dimer results more quickly and appropriately. The nurses were also criticized for not completing the Doppler ultrasound. A breakdown in communication in the care for this patient among all of the treating providers was noted.
Both Internal Medicine Physicians A and B were also criticized for not communicating to the patient the importance of the tests and the risks involved, especially after learning that the patient was refusing tests. The patient was also noted for having some responsibility for the bad outcome for refusing to go the ED or agreeing to ordered tests.
Two consultants for the defense stated that the patient’s death was more likely caused by an abdominal perforation, gastrointestinal bleed, or duodenal ulcer bleed that led to sepsis, than a PE. One of these consultants believed the patient developed peritonitis, indicated by the patient’s brown emesis and back pain, which led to his death. In addition, the patient was taking prednisone, which is known to cause ulcers. This expert stated that if the patient was experiencing a PE, the clinical presentation would have included shortness of breath, chest pain, cough, tachypnea, and syncope.
Another consultant noted that the elevated D-dimer results were a non-specific finding and non-conclusive of a PE. This expert argued that unless a D-dimer was negative, it would not have any diagnostic value and would not have led to a definitive diagnosis. He noted that a positive D-dimer test can also result from Crohn’s Disease, infection, and sepsis.
This expert believed the patient had sepsis and that the steroids he was taking for Crohn’s disease would have muted his response to the sepsis and kept his white count low. He also noted that the patient likely did not have a DVT/PE based on the following:
- the patient’s leg swelling, which may have suggested DVT, resolved by June 4;
- PE does not normally cause abdominal pain;
- the patient’s Crohn’s Disease would have explained his abdominal symptoms; and
- the patient’s abdominal symptoms (nausea, vomiting, and diarrhea) were present and ongoing for two weeks before his death.
Expert consultants for the plaintiff were critical of Internal Medicine Physician B for not seeing the patient from June 13 to June 15. However, Internal Medicine Physician B was not named in the lawsuit; therefore, blame for the lack of continuity of care was placed only on Internal Medicine Physician A. Another plaintiff expert noted her concern that Internal Medicine Physician A never investigated why the Doppler was not performed, despite an order to have it done.
Disposition
This case was settled on behalf of Internal Medicine Physician A and the nursing home and rehabilitation center.
Risk management considerations
The prominent risk factors in this case include informed refusal (the refusal of the venous sonogram with Doppler ultrasound by the patient); delay in follow up (not following up for the ordered sonogram to detect DVT); and communication (Internal Medicine Physician A not returning phone calls from the nursing staff).
Informed refusal
The patient refused care several times during his treatment, making informed refusal discussions and documentation key issues in this case. According to the Centers for Medicare & Medicaid Services Interpretive Guidelines, “[T]he patient or his or her representative (as allowed under State law) has the right to make informed decisions regarding his or her care. The patient’s rights include being informed of his or her health status, being involved in care planning and treatment, and being able to request or refuse treatment. This right must not be construed as a mechanism to demand the provision of treatment or services deemed medically unnecessary or inappropriate. The right to make informed decisions means that the patient or patient’s representative is given the information needed in order to make ‘informed’ decisions regarding his/her care.” (1)
When a patient refuses treatment, documentation of the discussion with the patient, including the possible risks of not completing medical intervention, should be detailed in the medical record. If the patient persists in refusing treatment, a documented informed refusal may help a physician’s defense in the event of a claim.
Documentation of a patient's informed refusal should include:
- a description of the recommended test or treatment;
- the physician’s reasoning for recommending or ordering the test or treatment;
- the benefits and risks to the patient of the test or treatment;
- a description of the conversation with the patient of the risks, the possibility for further complications, and possible death if refusing the test or treatment;
- the facts and details of the refusal of the treatment, including date and time of refusal and who made the refusal (patient or patient’s representative); and
- a clear summary of why the patient or the patient’s representative refused the test.
Delay in follow up
In this case, a D-dimer test was performed with the results indicating a possible DVT. Upon receipt of those results, another discussion with the patient should have occurred and venous sonogram scheduled. However, the order for the venous sonogram with Doppler ultrasound was never completed or followed up on. Had this test been performed, a more definitive diagnosis could have been reached. Having protocols in place to document the physician’s order with follow-up results may have assisted in more accurate results.
Communication
Failures in communication are frequently a component of malpractice lawsuits, and this case was no exception. A study released in 2016 estimated that communication failures in U.S. hospitals and medical practices were responsible for, at least in part, 30 percent of all malpractice claims, resulting in 1,744 deaths and $1.7 billion in malpractice costs over five years. (2)
In this case, the nurses attempted to contact Internal Medicine Physician A for two days after he had officially resigned from the facility. Documentation by staff revealed the physician was called six times within a 17-hour span of time with no response. However, there was no record that Internal Medicine Physician A’s resignation was communicated to the nursing staff.
There was no indication that the nurses were notified of the transfer of care of Internal Medicine Physician A’s patients to Internal Medicine Physician B. Had the nurses known about the change in physician care they may have attempted to notify Internal Medicine Physician B instead of making numerous unsuccessful attempts to Internal Medicine Physician A.
Staff changes in health care settings should be communicated to clinical employees in a timely manner. This will help ensure that patient transfers are well-coordinated, and continuity of care is not interrupted.
In 2006, the Joint Commission established National Patient Safety Goals which includes standards for communicating transfer of patient care. In its published standards, the Joint Commission states that “hand-off communication provides for the opportunity for discussion between the giver and receiver of patient information. Note: Such information may include the patient’s condition, care, treatment, medications, services, and any recent or anticipated changes to any of these.” (2, 3)
Sources
- State Operations Manual. Appendix A – Survey Protocol, Regulations and Interpretive Guidelines for Hospitals. Medicare & Medicaid Services Interpretive Guidelines 482.13(b)(2). Department of Health and Human Services. October 17, 2008. Available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/downloads/R37SOMA.pdf. Accessed June 14, 2021.
- The Joint Commission. Sentinel Event Alert. Inadequate hand-off communication. Issue 58, September 12, 2017. Available at https://www.jointcommission.org/-/media/tjc/documents/resources/patient-safety-topics/sentinel-event/sea_58_hand_off_comms_9_6_17_final_(1).pdf?db=web&hash=5642D63C1A5017BD214701514DA00139. Accessed June 14, 2021.
- The Joint Commission 2009 Requirements Related to the Provision of Culturally Competent Patient-Centered Care Hospital Accreditation Program (HAP). Standard PC.04.01.05. Available at https://www.jointcommission.org/-/media/deprecated-unorganized/imported-assets/tjc/system-folders/assetmanager/2009_clasrelatedstandardshappdf.pdf?db=web&hash=4C54E92378316C2281C7362C23F8E9B3. Accessed June 14, 2021.
Wayne Wenske can be reached at wayne-wenske@tmlt.org.
Susie Edwards can be reached at susie-edwards@tmlt.org.
