The Gut Ache and the Blame Game

In this month’s case, the monster reflects both the claim and the issue of joint and several liability during the course of what I term the “multiple provider event” or MPE. The exact details of the substantial settlements associated with this case are unknown, and subtle aspects of the case have been changed to maintain confidentiality.

An executive in his late 50s presented to the emergency department at 8:00 p.m. on a Friday night. Despite his complaint of severe epigastric abdominal pain, the man was triaged as a level 3 with normal vitals. After 20 minutes in the waiting room, he was brought back and promptly evaluated by the emergency physician.

The recorded history stated that the patient had three-weeks of epigastric pain, for which he was prescribed Prilosec. That evening, the pain had become acutely worse approximately 30 minutes after dinner, and he vomited once. He denied having any chest pain or shortness of breath, although he did have some nausea. The man’s past medical history was significant for hypertension and slightly elevated cholesterol. He described himself as an occasional smoker and casual drinker. He took ibuprofen regularly but had stopped the prior week.

The physical exam revealed the following vital signs: temperature 98.9; pulse 94; respirations 12; and blood pressure 110/65. The man was awake, alert, and clutching his abdomen in moderate distress. His skin was diaphoretic, his lungs were clear, and his heart demonstrated a regular rate and rhythm. The patient’s abdomen was soft with epigastric tenderness and guarding. The rest of his physical exam was unremarkable.

The emergency physician initially ordered a cardiac panel, including ECG, CXR, CBC, CMP, lipase, UA, troponin, and serial 2-hour troponin. He ordered an IV, oxygen, aspirin, morphine, and Zofran. The lab values returned as normal, including a troponin of 0.01. The chest X-ray was reported as normal. The ECG showed some non-specific ST wave changes and an occasional PVC. Following the normal lab results, the executive was given a GI cocktail. This initially made the pain better, but the severe pain returned after 15 minutes. He was given a second GI cocktail with the same result. The serial troponin came back at 0.02.

The emergency physician then ordered a chest and abdominal CT with IV contrast. The CT was read by the offsite after-hours radiology service as negative for aortic dissection, low risk for pulmonary embolus, and no evidence of cholecystitis, pancreatitis, bowel obstruction, aneurysm, kidney stone, or kidney or liver pathology. The man was still complaining of severe abdominal pain. The emergency physician called the primary care physician, who called in admission orders and asked the emergency physician to call the surgeon. The surgeon was notified that the patient was going to be admitted at 2:00 a.m. The executive transitioned to his floor bed at 3:00 a.m.

At 11:30 a.m. the next day, the radiologist called the emergency physician on duty and reported that there might be free air on the CT scan. The primary care physician was contacted, and he indicated that he was driving in to see the patient. When the executive was evaluated by his primary care physician at 12:30 p.m., he was hypotensive, tachycardic, and in shock. The surgeon was called and arrived at 12:45 p.m. to see the patient, who was immediately taken to the OR. There, the man’s perforated gastric ulcer was discovered. He expired several days later.

The physicians’ depositions were problematic. The radiologist stated that the after-hours read was just preliminary, and that he had immediately notified the emergency physician. He stated that the emergency physician knew that the radiologist was available 24 hours a day to come to the hospital and immediately read films, but that the emergency physician never requested that the radiologist come in to read the film “stat.” The radiologist further stated that the “after hours” read was accurate, and that there was no dissection, pulmonary embolus, abscess, or obstruction. The radiologist further opined that the emergency physician should have ordered the study with oral contrast.

The internist stated that, per hospital bylaws, he had 12 hours to see the patient and that the emergency physician did not properly inform him of the patient’s condition. He further stated that he had thought that the emergency physician was going to immediately consult the surgeon, and that the surgeon had already seen the patient.

The surgeon stated that he was never told that the patient had an acute surgical condition, and that he thought he was just supposed to remain available. He noted that, the next day, he had responded immediately when he was asked to see the patient.

After depositions, the primary care physician settled, the hospital settled, and the radiology group settled. The case against the surgeon was dismissed by the plaintiff, leaving the emergency physician as the only one left with outstanding liability in the case. The emergency physician reluctantly settled for approximately $200,000.

Strategic Discussion

This case gives many emergency physicians a gut ache, in part because it raises important issues that they don’t think about on regular basis.

Many physicians are unaware of the concept of joint and several liability. Joint and several liability, which is applicable in 46 states, allows a plaintiff to recover the total sum of the damages from any of the defendants – regardless of their share of the liability. For example, let’s say that in this case the court determined that the total liability was $1,000,000, and that the internist and radiologist settled for $200,000 and $100,000 respectively. Even if the emergency physician was responsible for only one percent of the causation, he would be responsible for $700,000 of the liability. Joint and several liability likely influenced the emergency physician to settle.

Another issue at play is that trial attorneys look for cases with multiple physician defendants because there are often multiple liability limits. If there are three physicians involved in the case and they each have $1million coverage, then the plaintiff can sue for $3 million.

Medical Care Analysis

The acute onset of pain is common in some types of acute events and should raise the emergency physician’s consideration of an emergency medical condition. Perforated ulcers are uncommon, affecting about 2% of those with peptic ulcer disease, but are more common than many physicians think. Likely because of the treatment of H. pylori, the incidence of ulcer perforation has decreased to approximately 4-14 cases per 100,000.

Perforated viscus should be included in the differential diagnosis of acute onset of chest or abdominal pain. Although free air or free fluid in the abdomen or mediastinum might be visualized on plain radiographic films, a CT is more sensitive. There are few studies that look at the sensitivity or specificity of CT, but it is clear that CTs are not 100% sensitive. Some believe that the addition of GI contrast may increase the detectabiillty of ulcer perforations, which can also lead to pancreatitis, hemorrhage, and fistulas.

The majority of perforated viscus cases may never be formally diagnosed and are self-limited. While cases can sometimes be managed nonsurgically, patients often require surgery or at minimum a surgical consult. However, GI tract perforations can be fatal – as was true in this case. The literature concludes that, if a diagnosis is delayed more than 12 hours or if the patient becomes hypotensive, then mortality significantly increases.

Process Issues

Telecommunications with specialists are always problematic. Often, there is disagreement over what was said on the phone. Furthermore, emergency physician documentation of the conversation with the admitting physician or specialist is often brief, general, and incomplete.

Hospital bylaws that allow admitting physicians up to 12 or 24 hours to see a patient lead to the issue of who is responsible for the patient on the floor. This is particularly true if the admitting physician has not yet seen the patient. Staff bylaws should be clarified to note that, upon writing admit orders, the responsibility for care is immediately transferred to that physician.

Although the emergency physician believes it is implied, It may be prudent to document that responsibility for care was transferred upon discussion with the admitting physician, and that the emergency physician requested that the surgeon see and evaluate the patient.

The Monster Claim is the nightmare, $1,000,000 plus settlement or judgment (not including defense costs) that could happen to any unsuspecting physician or medical care provider. As in most cases in emergency medicine, it is a case of failure to suspect the diagnosis and involves a series of unfortunate events. We believe that it is important that all emergency providers become aware of these claims so they won’t repeat the same mistakes in the future.

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