For any newer docs or those who have never gone through a lawsuit / deposition -- I'd HIGHLY recommend a close read through this deposition (forewarning, it's lengthy). Yes, it's tedious, but that's the point. Take a few minutes and read through -- think about sitting there, stressed out, nervous, and how you'd answer each of these questions while a bad-faith actor is leading through you this series of questions. Notice the level of detail they ask about. Every. Thing. in your chart is going to be turned upside down and shaken out. This is all to get you to slip up about something -- anything -- that can then be used against you. Remember, the person(s)/jury judging whether or not you screwed up (and owe millions of dollars) has absolutely no medical training. They're the ones asking why you aren't prescribing antibiotics for their viral cough, and wondering why you won't order a CT for their recurrent migraine headache. The deposition has little to do about actual medical fact, and all about painting you as a bad, sloppy, inconsiderate, short-cutting doctor.
A trained eye will notice how the plaintiff attorney gets this doc to give up a lot of ground without much effort. There's a lot of of questions that are much about nothing, and then they'll strike with something that might seem innocuous but is actually pretty harmful to the defenses' case. Think of how long they spend just on getting the doctor to explain their practice training, schedule, etc was. All just fluff to wear you down when you're most on guard (or even prompt a slip up or two that don't matter for the case, but serve to make you nervous). There's a lot of misdirection here.
One that just jumps right off the page to me is how they get the ED doc to essentially admit they violated standard of care. They got them to admit first, that there IS a standard of care for MRI (that doesn't change!), and then slowly cornered them into the fact that their documentation didn't exclude the near for an MRI. Standard of care is for THEM to argue, not for you to freely give up (even if it's obvious).
The antidote to all of this is to contextualize EVERYTHING, and never speak in absolutes. The jury has NO idea about what it takes to order an MRI after hours -- so explain it to them. Don't paint it like you just click it in the chart and it happens! Clearly that wasn't the case here (or frankly at most hospitals, even now, in 2025). I was shaking my head as the attorney asked what it took to order an MRI and the doc was just describing the buttons they needed to click...
Being an ED doc is freaking hard, and there are landmines everywhere. We know very well the world is all but black and white, and yet, this is how the plaintiff attorney will set up every question --- yes or no XXXX (question framed exactly how they want it to read and imply). Every question in the deposition must be treated as a trap, and your best defense is to contextualize it into how YOU interpret the spirit of the question. Don't use their words, use yours.
So many great points here. I've never been deposed but reading this was a big learning opportunity for me. I agree with you about the standard of care... although in my opinion, there was a discussion about the standard of care being static and never changing that the doc agreed with. I'd argue that the standard does change depending on what resources you have available and how hard it is to access them. What did you think about that part?
Yes and yes -- that's the exact point! The standard of care is absolutely not static and is dependent on a multitude of factors. I would go so far as to argue that the standard of care is dynamic by definition -- as it's essentially what the average, appropriately trained physician would do given the same exact set of circumstances (which are, by their nature, dynamic). MRI availability / access is just one of those. What to say about time about other resource availability (beds, speciality access, nursing staffing, etc)? Is it the standard of care to transfer a possible cauda equina through a war zone if that's the only available MRI? Obviously an exaggeration, but they grey area is where ED docs play in all day, everyday. Let your deposition reflect that.
Lawyer: "So would you agree it's the standard of care to get the MRI?"
Doc: "No, not always. In a completely ideal world everyone with intense low back pain would get an MRI -- but we never practice in that environment. We have to consider a multitude of factors when deciding to use scarce resources like MRI, and what their possible benefit may be. In this situation, where MRI was not available, and transfer seemed of more potential harm than benefit, I felt that a CT was the appropriate study."
Lawyer: "So you're saying that MRI would not be the best test?"
Doc: "No, I'm saying that every situation has a different set of risks and benefits, and that it is almost never 100% clear cut. What may be the best test if you already know the diagnosis is rarely the best test when you don't know the diagnosis, and particularly when you have a low suspicion based on the exam."
Yep, totally agree. I also thought their discussion about the concept of the differential diagnosis was pretty poor. A differential isn't a list of every possible disease that could cause a symptom, that would take an entire textbook. Its focused on what is most likely/common in the doctor's professional judgment and what is important to actually catch in the ED. What the "worst" diagnosis is and what the most time-sensitive diagnosis is are not always the same. That being said, I think the doc did a good job, and I'm not sure I can think quick enough on my feet to appropriately answer each question like I should. I'm really good at thinking quick on my feet for emergency medical diagnosis because I do it all the time, but I don't have a debate/rhetoric argument with attorneys (like they practice their entire career) so its easy to get steamrolled despite having all the facts on my side.
Towards your point about thinking quickly on your feet -- that's fair. But that's why we need to talk about these things, and why you should absolutely do a few practice depositions, or just read through some, if you have something like this coming up.
It's also very important to remember that you get to answer a question to your satisfaction, and that they cannot move on until you're finished. This means you actually don't have to think quickly --- take your time, take a sip of water, chew over the question, ask them to rephrase it. Tell them you're not sure what they mean. Can you ask it in another way? Take as long as you want to make sure you say what you really mean (they will try to get you to say something *they* mean). Once it's down on paper in the deposition, those are YOUR words. Make sure they're yours.
You're so right about the differential diagnosis discussion. There's a really, really important notion to be made anytime a lawyer brings up this idea of the differential diagnosis. This is textbook 101 trap time for them, and we make it all too easy. Get out of your medical student mind of "X is in the differential for Y complaint." This is fine for board exams, rounds, and tests -- but this is going to get your murdered by the lawyer if you say that X was in your differential and then you didn't do the appropriate workup to exclude it.
You have to, HAVE to, contextualize and clarify that "considering" a diagnosis (ie: thinking about it initially based on the symptom category) is much different than your working "differential diagnosis" that is driving your workup. These are so often conflated, and plays right into the lawyers traps.
Do you think about ACS every time you see "chest pain" on the chief complaint? Yes of course. Is ACS in your differential once you find out it's a 20 year old who was hit by soccer ball with a bruise on the chest? No, of course not. ACS is NOT within your differential, because your history and exam has already reasonable excluded it. You're not ordering serial trops and a BNP on this patient, because you shouldn't and it's no longer within your differential.
Get all that dot phrase DDx junk out of your note templates. You know what I'm talking about. No, transverse myelitis is NOT in your differential for the man who presents with low backpain after lifting a couch with a normal neuro exam. And if it is, for some reason, you should be either talking with neuro or getting an MRI or some other higher level of testing. You can't leave these loose ends in your charting. Putting all that stuff in doesn't make you look smart or thorough -- it just opens you up to liability, massively.
If you tell them that X was in your differential, and you didn't reasonably exclude X by additional diagnostics of some sort (further exam, treatment response with observation and serial exams, diagnostics/imaging, in-person consultation, etc -- SOME thing to make the lawyer/jury feel like you went the extra step to really look), then you're setting yourself up for disaster if, by any happenstance, the patient for some reason actually has X.
Note that this is different than mentioning some of the boogiemen diagnoses in your notes, but it should be a simple "X Y and Z are excluded clinically by patient's history and exam" (which of course, should then be thorough and imply that you looked for X Y and Z by explicitly mentioning that patient does not have their typical history or signs). In this case, the doctor got double burned by not including a strength assessment in their neuro exam -- the lawyer traps them into admitting that on page 58, line 12.
As ER providers, we really have to tow the line that our specialty is based on excluding (and even better said, "risk stratifying") diagnoses, not making them. We get lucky (and usually the patient, unlucky) when we make a diagnosis. That's not our job though. We're there to take the scary things off the table -- that's the job. If you can't do that with your history, or your exam, then you need to order the test, or talk to the specialist -- that's it. Easier said than done, trust me, I know -- with all the pressures of metrics, patient satisfaction, etc etc, this often gets lost. But please, PLEASE don't do what this doc did and let the lawyer define what the job of the ER doctor is or what their differential should be.
From the deposition:
---------------
Q. Have you heard the term "differential diagnosis" before? A. Yes.
Q. What does that term mean to you as an emergency room doctor? A. You think of all the possible things that could be attributed to the patient's complaint. And those are the things you want to kind of formulate your workup and treatment around.
Q. Okay. So the first step in the differential diagnosis is to elicit the symptoms and history from the patient, correct? A. Yes.
Q. And based on the history and symptoms, you then either in your mind or in written form create a list of potential diagnoses that the patient might have? A. Yes.
Q. And then once you have that list in mind, you set about ruling out potential diagnoses, correct -- A. Yes.
Q. -- until you reach the diagnosis for the patient? A. Yes.
-----------------------------
Something else that would be much much better:
Q. Have you heard the term "differential diagnosis" before? A. Yes.
Q. What does that term mean to you as an emergency room doctor? A. It's a term primarily used in medical training to help learners consider possible diagnoses based on a symptom or exam finding. As an ER doctor though, I'm not trying to find a diagnosis, but instead marking sure the patient is safe. So my differential might be a bit different -- I'm thinking about which possible life-threatening diagnoses the patient may have based on their clinical context, and then risk stratifying them based on those findings -- either with additional treatments, observation, tests, or usually, some combination of the above. So a "differential diagnosis" for me is usually very refined once I've done my initial history and exam -- I'm looking to make sure the patient isn't having the scary ones that are suggested by their initial evaluation.
Did spine surgery for about 40 years. Agree with your conclusions re somehow ‘pinning’ this on the ED was bullshit. Also, may have missed it, but did not see a rectal exam was done, which imo:experience is more useful : telling than testing reflexes in the supine position. DJS MDJD
Yep, no rectal exam done (at least in the ED, not sure what happened in the hospital later). The importance of 40 years of wisdom about spine catastrophes can't be overstated!
Wow. I concur with the comment re the Ed doc being the sole defendant. Either: a. Someone threw her under the bus (happens frequently as we know) b. Everyone else settled early (including hospital) c. The patient did not “like” the Ed doc and this was punitive
d. The plaintiff attorney was inept.
Again, this illustrates how Ed docs are put in the untenable position of practicing in less than “usual care” due to c-suite decisions.
Yep. Some bad hospital admins make decisions that force their docs to practice in a way that is negligent but never shoulder any of the liability. Good and supportive hospital administrators are rare gems.
I'm astounded that neurosurg and the hospitalist weren't named in the complaint. Sounds like the ED doc did everything they had access to, and admission for MRI makes sense if MR is gonna be unavailable in the ED. Definitely an example of where a phone consult with a PA is not adequate neurosurgical evaluation.
Yeah, I couldn't believe it either. I'm hoping they were also sued separately and settled beforehand or something, because it just doesn't make any sense. I'm also not a fan of the PA consult but to be honest, I think absent incontinence or clear lower extremity weakness (unclear if she truly had weakness or just pain preventing exam at that point) even the NS attending isn't doing anything about this until the next day anyway.
Totally agreed. I may have missed this, but was there a PVR documented? I tend to lean heavily on presence or absence of urinary retention in cases like this, precisely because weakness vs pain is so commonly hard to determine on exam.
No PVR documented. What cut-offs do you use for PVR? There's such a gradient of probability of cauda equina based on different volumes of PVR (that as far as I can tell aren't adjusted for size) that I sometimes really struggle to apply it.
The number i have in my head is about 200 cc's, but i cannot claim any strong evidence base for that number. Obviously the rest of the clinical context matters a lot, too.
I’m absolutely shocked the ER doctor shouldered the blame for this .
This is part of the reason I hate working night shifts especially at a community site . Getting in contact with much less getting certain specialties to COME IN at night is a nightmare . Same with MRI . You have to first call a radiologist to get approval to call a tech in and they are allowed 1.5 hours to get there from the time you call them in (and they often need that much time).
Then when you try to transfer to a tertiary hospital they give you pushback because your specialist hasn’t evaluated or you haven’t gotten certain imaging done .
I had a similar case where though I wasn’t sued, I had a complaint from the receiving hospital about delayed care because I didn’t have pediatric orthopedist see the patient . For the record , we don’t have peds ortho on call . We don’t even have inpatient peds! They also chastised me for not doing an MRI which we don’t have after 7. The child in question would have needed to be transferred regardless and waiting to get a tech called in , get the MRI done and then actually get it read (MSK MRIs aren’t read stat ) would have delayed the case at minimum 4-5 hours . Meanwhile It took ~2 hours to get him transferred over to the main teritary hospital where they have all those resources 24 hours . They didn’t order the MRI till the next day . Yet I somehow got the blame for delaying care ! . It’s so frustrating .
The thing with "emergency" care in the middle of the night is that it's not going to happen until the sun comes up anyway. MRI tech takes 1.5 hours to show up. Then getting them over to MRI and the scan started takes 30 minutes. Then the scan itself takes 30 minutes. Then the read takes 2-4 hours. If you start at midnight its easily 5-6am when anything happens. So you try to transfer the patient instead... spend an hour playing phone tag and getting the right person from the hospital on the line to finally accept. Then an hour or two for EMS to arrive (if, and thats a big if, they have the staff to do middle of the night transfers), then at least an hour or two to drive them to their destination (if not longer in many parts of the US).
Exactly . Yet these are the things that never seem to be discussed in these legal cases . Juries and lawyers think everything happens quickly with the simple click of a button .
I would be inclined to think that the pain physician who performed the procedure was also named in the suit. I'd be curious to know if this patient was anti-coagulated. No mention is made in the notes. Injection through the interlaminar route with a patient on anticoagulants is a much high risk for epidural bleed especially if using a larger gauge spinal needle. The patient has spinal hardware with altered anatomy, so was the injection done above or below the fusion? I'm inclined to think it was above the fusion possibly at L1-L2 with difficult anatomy secondary to adjacent segment deterioration. This could result in a traumatic or difficult needle placement and high risk of bleed adjacent to the conus.
They weren't named in this lawsuit at all from start to finish, which is just odd. I wish we had some of the records and the op note but unfortunately it was left out of the public court records so we're left guessing as to any further details.
I will say that documenting reflexes CAN help prevent a lawsuit. I served as an expert witness for the plaintiff on a case of missed spinal epidural abscess where 6 hrs after the patient was discharged he returned with clear findings of weakness and incontinence. I found the ED doc was not below the SOC because he documented good strength and reflexes. Also, the patient adamantly denied IV drug abuse which was a lie. If a patient has good strength, good reflexes, no saddle paresthesia, and no incontinence then it is highly unlikely they have SEA or CE.
On a separate note prior to having 24 MRI at my shop we did have an on call tech, but we had to test and document decreased rectal tone and increased post void residual in order to call the tech in. Now our problem is we have 24 MRI but there always seem to be a long wait because everyone both input and outpt is getting one.
Thanks for the insight and the counterpoint about utility of reflexes! You are a good expert witness to make that call... seems like so often the plaintiffs don't really care at all and they just shotgun name everyone anyway. We need more ethical work on the plaintiffs side.
Needing to document decreased rectal tone or elevated PVR is asinine and reveals poor medical knowledge of the radiologist group or ED admin who created that rule. You can have emergent spinal cord pathology with normal rectal tone and normal PVR. Spinal epidural abscess, hematoma, cauda equina and cona medullaris are not the only spinal cord emergencies.
As a simple example, one can have a disc herniation with acute spinal nerve root compression causing motor weakness of an extremity without the aforementioned findings and that is an emergency. Time to decompression in this case dictates motor function outcome.
I've always struggled with PVR because its hard to choose a cut-off for continual variables (I supposed this applies to a lot of medical tests but I feel it most acutely with PVR).
I will admit I haven't heard of anyone doing emergency decompression for nerve root compression, even if there is weakness. Only if there's cord compression or cauda equina. If you know of any good resources of clinical guidelines about this please let me know!
I believe it depends on the degree of motor weakness, the surgeon's management style, as well as the patient's surgical risk profile. However, conceptually, if the nerve root is being compressed enough to cause motor deficits, there's a risk that this could become permanent if not decompressed. Time is nerve.
My training was that any back pain with motor deficit is a surgical emergency until proven otherwise and requires an emergent MR and spine consult. The surgeon still may elect for conservative management, depending on factors mentioned above. Sensory deficits do not meet the threshold for emergent decompression.
I'll take a look for specific guidelines for this and post here if I find any, though it may be a dogmatic algorithm.
Also curious to hear others' thoughts and practice style on this.
The ED doc was within a few years of residency and pretty new to the hospital. Those are the docs who are likely to be on their own at night. Experience matters. An ED doc with 30 years of experience can get away with calling the neurosurgery attending and saying, “Hey, I’ve got this lady here who had a procedure earlier today, and now she is in excruciating pain and has asymmetric motor findings. I need you to come in.” A doc with 3 years of experience is going to be reluctant to make that phone call, more dependent on imaging, and probably use more tenuous wording.
“Good judgement (aka”Wisdom”) comes from having experience. Experience comes from bad judgement”-a residency mentor, about 50 years ago:) Or that’s about how I remember it. BTW, in my both spine, n my other line of work, there’s likely nfw the only party sued was the ED doc. The pain management guy who did the shot, then did not f/u, someone in radiology, n whoever refused to admit her In neuro/anesthesia for timely evaluation would have been sued, in my day. But that was before the hospitals/bean counters bought up all the referral sources and everyone became employee-providers.
I'm guessing the rest of the docs reached a pre-trial settlement. That's the only way this makes remotely any sense to me. And the ED doc didn't want to settle because it wasn't their fault.
Probably. Writing all these cases has made me way more likely to just want to settle in general. Especially if my documentation was this poor (which it sometimes is, no one is perfect). It would be kind of infuriating to settle if I think I really provided good care, but I've seen too many things go wrong for the doctor at trial. Not to mention years of stress and anticipation for a trial. Best to leave the ego out of it, let your insurance pay out, and move on with life.
You know what might be a useful post is what happens to your career if you settle? Filling in all these credentialing applications with long sections about your malpractice history - what happens when you need to get your next job or next hospital credentialing once you have a settlement, or even a lawsuit to explain?
Short answer is that basically nothing happens if you settle. Doesnt affect your career or job prospects at all. Now if there was something really egregious like assaulting a patient, or if you're getting sued multiple times per year, those could actually change things. But just a standard med mal case you settle has zero repercussions.
For any newer docs or those who have never gone through a lawsuit / deposition -- I'd HIGHLY recommend a close read through this deposition (forewarning, it's lengthy). Yes, it's tedious, but that's the point. Take a few minutes and read through -- think about sitting there, stressed out, nervous, and how you'd answer each of these questions while a bad-faith actor is leading through you this series of questions. Notice the level of detail they ask about. Every. Thing. in your chart is going to be turned upside down and shaken out. This is all to get you to slip up about something -- anything -- that can then be used against you. Remember, the person(s)/jury judging whether or not you screwed up (and owe millions of dollars) has absolutely no medical training. They're the ones asking why you aren't prescribing antibiotics for their viral cough, and wondering why you won't order a CT for their recurrent migraine headache. The deposition has little to do about actual medical fact, and all about painting you as a bad, sloppy, inconsiderate, short-cutting doctor.
A trained eye will notice how the plaintiff attorney gets this doc to give up a lot of ground without much effort. There's a lot of of questions that are much about nothing, and then they'll strike with something that might seem innocuous but is actually pretty harmful to the defenses' case. Think of how long they spend just on getting the doctor to explain their practice training, schedule, etc was. All just fluff to wear you down when you're most on guard (or even prompt a slip up or two that don't matter for the case, but serve to make you nervous). There's a lot of misdirection here.
One that just jumps right off the page to me is how they get the ED doc to essentially admit they violated standard of care. They got them to admit first, that there IS a standard of care for MRI (that doesn't change!), and then slowly cornered them into the fact that their documentation didn't exclude the near for an MRI. Standard of care is for THEM to argue, not for you to freely give up (even if it's obvious).
The antidote to all of this is to contextualize EVERYTHING, and never speak in absolutes. The jury has NO idea about what it takes to order an MRI after hours -- so explain it to them. Don't paint it like you just click it in the chart and it happens! Clearly that wasn't the case here (or frankly at most hospitals, even now, in 2025). I was shaking my head as the attorney asked what it took to order an MRI and the doc was just describing the buttons they needed to click...
Being an ED doc is freaking hard, and there are landmines everywhere. We know very well the world is all but black and white, and yet, this is how the plaintiff attorney will set up every question --- yes or no XXXX (question framed exactly how they want it to read and imply). Every question in the deposition must be treated as a trap, and your best defense is to contextualize it into how YOU interpret the spirit of the question. Don't use their words, use yours.
So many great points here. I've never been deposed but reading this was a big learning opportunity for me. I agree with you about the standard of care... although in my opinion, there was a discussion about the standard of care being static and never changing that the doc agreed with. I'd argue that the standard does change depending on what resources you have available and how hard it is to access them. What did you think about that part?
Yes and yes -- that's the exact point! The standard of care is absolutely not static and is dependent on a multitude of factors. I would go so far as to argue that the standard of care is dynamic by definition -- as it's essentially what the average, appropriately trained physician would do given the same exact set of circumstances (which are, by their nature, dynamic). MRI availability / access is just one of those. What to say about time about other resource availability (beds, speciality access, nursing staffing, etc)? Is it the standard of care to transfer a possible cauda equina through a war zone if that's the only available MRI? Obviously an exaggeration, but they grey area is where ED docs play in all day, everyday. Let your deposition reflect that.
Lawyer: "So would you agree it's the standard of care to get the MRI?"
Doc: "No, not always. In a completely ideal world everyone with intense low back pain would get an MRI -- but we never practice in that environment. We have to consider a multitude of factors when deciding to use scarce resources like MRI, and what their possible benefit may be. In this situation, where MRI was not available, and transfer seemed of more potential harm than benefit, I felt that a CT was the appropriate study."
Lawyer: "So you're saying that MRI would not be the best test?"
Doc: "No, I'm saying that every situation has a different set of risks and benefits, and that it is almost never 100% clear cut. What may be the best test if you already know the diagnosis is rarely the best test when you don't know the diagnosis, and particularly when you have a low suspicion based on the exam."
Yep, totally agree. I also thought their discussion about the concept of the differential diagnosis was pretty poor. A differential isn't a list of every possible disease that could cause a symptom, that would take an entire textbook. Its focused on what is most likely/common in the doctor's professional judgment and what is important to actually catch in the ED. What the "worst" diagnosis is and what the most time-sensitive diagnosis is are not always the same. That being said, I think the doc did a good job, and I'm not sure I can think quick enough on my feet to appropriately answer each question like I should. I'm really good at thinking quick on my feet for emergency medical diagnosis because I do it all the time, but I don't have a debate/rhetoric argument with attorneys (like they practice their entire career) so its easy to get steamrolled despite having all the facts on my side.
Towards your point about thinking quickly on your feet -- that's fair. But that's why we need to talk about these things, and why you should absolutely do a few practice depositions, or just read through some, if you have something like this coming up.
It's also very important to remember that you get to answer a question to your satisfaction, and that they cannot move on until you're finished. This means you actually don't have to think quickly --- take your time, take a sip of water, chew over the question, ask them to rephrase it. Tell them you're not sure what they mean. Can you ask it in another way? Take as long as you want to make sure you say what you really mean (they will try to get you to say something *they* mean). Once it's down on paper in the deposition, those are YOUR words. Make sure they're yours.
You're so right about the differential diagnosis discussion. There's a really, really important notion to be made anytime a lawyer brings up this idea of the differential diagnosis. This is textbook 101 trap time for them, and we make it all too easy. Get out of your medical student mind of "X is in the differential for Y complaint." This is fine for board exams, rounds, and tests -- but this is going to get your murdered by the lawyer if you say that X was in your differential and then you didn't do the appropriate workup to exclude it.
You have to, HAVE to, contextualize and clarify that "considering" a diagnosis (ie: thinking about it initially based on the symptom category) is much different than your working "differential diagnosis" that is driving your workup. These are so often conflated, and plays right into the lawyers traps.
Do you think about ACS every time you see "chest pain" on the chief complaint? Yes of course. Is ACS in your differential once you find out it's a 20 year old who was hit by soccer ball with a bruise on the chest? No, of course not. ACS is NOT within your differential, because your history and exam has already reasonable excluded it. You're not ordering serial trops and a BNP on this patient, because you shouldn't and it's no longer within your differential.
Get all that dot phrase DDx junk out of your note templates. You know what I'm talking about. No, transverse myelitis is NOT in your differential for the man who presents with low backpain after lifting a couch with a normal neuro exam. And if it is, for some reason, you should be either talking with neuro or getting an MRI or some other higher level of testing. You can't leave these loose ends in your charting. Putting all that stuff in doesn't make you look smart or thorough -- it just opens you up to liability, massively.
If you tell them that X was in your differential, and you didn't reasonably exclude X by additional diagnostics of some sort (further exam, treatment response with observation and serial exams, diagnostics/imaging, in-person consultation, etc -- SOME thing to make the lawyer/jury feel like you went the extra step to really look), then you're setting yourself up for disaster if, by any happenstance, the patient for some reason actually has X.
Note that this is different than mentioning some of the boogiemen diagnoses in your notes, but it should be a simple "X Y and Z are excluded clinically by patient's history and exam" (which of course, should then be thorough and imply that you looked for X Y and Z by explicitly mentioning that patient does not have their typical history or signs). In this case, the doctor got double burned by not including a strength assessment in their neuro exam -- the lawyer traps them into admitting that on page 58, line 12.
As ER providers, we really have to tow the line that our specialty is based on excluding (and even better said, "risk stratifying") diagnoses, not making them. We get lucky (and usually the patient, unlucky) when we make a diagnosis. That's not our job though. We're there to take the scary things off the table -- that's the job. If you can't do that with your history, or your exam, then you need to order the test, or talk to the specialist -- that's it. Easier said than done, trust me, I know -- with all the pressures of metrics, patient satisfaction, etc etc, this often gets lost. But please, PLEASE don't do what this doc did and let the lawyer define what the job of the ER doctor is or what their differential should be.
From the deposition:
---------------
Q. Have you heard the term "differential diagnosis" before? A. Yes.
Q. What does that term mean to you as an emergency room doctor? A. You think of all the possible things that could be attributed to the patient's complaint. And those are the things you want to kind of formulate your workup and treatment around.
Q. Okay. So the first step in the differential diagnosis is to elicit the symptoms and history from the patient, correct? A. Yes.
Q. And based on the history and symptoms, you then either in your mind or in written form create a list of potential diagnoses that the patient might have? A. Yes.
Q. And then once you have that list in mind, you set about ruling out potential diagnoses, correct -- A. Yes.
Q. -- until you reach the diagnosis for the patient? A. Yes.
-----------------------------
Something else that would be much much better:
Q. Have you heard the term "differential diagnosis" before? A. Yes.
Q. What does that term mean to you as an emergency room doctor? A. It's a term primarily used in medical training to help learners consider possible diagnoses based on a symptom or exam finding. As an ER doctor though, I'm not trying to find a diagnosis, but instead marking sure the patient is safe. So my differential might be a bit different -- I'm thinking about which possible life-threatening diagnoses the patient may have based on their clinical context, and then risk stratifying them based on those findings -- either with additional treatments, observation, tests, or usually, some combination of the above. So a "differential diagnosis" for me is usually very refined once I've done my initial history and exam -- I'm looking to make sure the patient isn't having the scary ones that are suggested by their initial evaluation.
Did spine surgery for about 40 years. Agree with your conclusions re somehow ‘pinning’ this on the ED was bullshit. Also, may have missed it, but did not see a rectal exam was done, which imo:experience is more useful : telling than testing reflexes in the supine position. DJS MDJD
Yep, no rectal exam done (at least in the ED, not sure what happened in the hospital later). The importance of 40 years of wisdom about spine catastrophes can't be overstated!
Wow. I concur with the comment re the Ed doc being the sole defendant. Either: a. Someone threw her under the bus (happens frequently as we know) b. Everyone else settled early (including hospital) c. The patient did not “like” the Ed doc and this was punitive
d. The plaintiff attorney was inept.
Again, this illustrates how Ed docs are put in the untenable position of practicing in less than “usual care” due to c-suite decisions.
Yep. Some bad hospital admins make decisions that force their docs to practice in a way that is negligent but never shoulder any of the liability. Good and supportive hospital administrators are rare gems.
Based on the deposition, the HOSPITAL was the defendant at that point. The ED doc was either dropped or had already settled.
I'm astounded that neurosurg and the hospitalist weren't named in the complaint. Sounds like the ED doc did everything they had access to, and admission for MRI makes sense if MR is gonna be unavailable in the ED. Definitely an example of where a phone consult with a PA is not adequate neurosurgical evaluation.
Yeah, I couldn't believe it either. I'm hoping they were also sued separately and settled beforehand or something, because it just doesn't make any sense. I'm also not a fan of the PA consult but to be honest, I think absent incontinence or clear lower extremity weakness (unclear if she truly had weakness or just pain preventing exam at that point) even the NS attending isn't doing anything about this until the next day anyway.
Totally agreed. I may have missed this, but was there a PVR documented? I tend to lean heavily on presence or absence of urinary retention in cases like this, precisely because weakness vs pain is so commonly hard to determine on exam.
No PVR documented. What cut-offs do you use for PVR? There's such a gradient of probability of cauda equina based on different volumes of PVR (that as far as I can tell aren't adjusted for size) that I sometimes really struggle to apply it.
The number i have in my head is about 200 cc's, but i cannot claim any strong evidence base for that number. Obviously the rest of the clinical context matters a lot, too.
Would also want to know this one.
I’m absolutely shocked the ER doctor shouldered the blame for this .
This is part of the reason I hate working night shifts especially at a community site . Getting in contact with much less getting certain specialties to COME IN at night is a nightmare . Same with MRI . You have to first call a radiologist to get approval to call a tech in and they are allowed 1.5 hours to get there from the time you call them in (and they often need that much time).
Then when you try to transfer to a tertiary hospital they give you pushback because your specialist hasn’t evaluated or you haven’t gotten certain imaging done .
I had a similar case where though I wasn’t sued, I had a complaint from the receiving hospital about delayed care because I didn’t have pediatric orthopedist see the patient . For the record , we don’t have peds ortho on call . We don’t even have inpatient peds! They also chastised me for not doing an MRI which we don’t have after 7. The child in question would have needed to be transferred regardless and waiting to get a tech called in , get the MRI done and then actually get it read (MSK MRIs aren’t read stat ) would have delayed the case at minimum 4-5 hours . Meanwhile It took ~2 hours to get him transferred over to the main teritary hospital where they have all those resources 24 hours . They didn’t order the MRI till the next day . Yet I somehow got the blame for delaying care ! . It’s so frustrating .
The thing with "emergency" care in the middle of the night is that it's not going to happen until the sun comes up anyway. MRI tech takes 1.5 hours to show up. Then getting them over to MRI and the scan started takes 30 minutes. Then the scan itself takes 30 minutes. Then the read takes 2-4 hours. If you start at midnight its easily 5-6am when anything happens. So you try to transfer the patient instead... spend an hour playing phone tag and getting the right person from the hospital on the line to finally accept. Then an hour or two for EMS to arrive (if, and thats a big if, they have the staff to do middle of the night transfers), then at least an hour or two to drive them to their destination (if not longer in many parts of the US).
Exactly . Yet these are the things that never seem to be discussed in these legal cases . Juries and lawyers think everything happens quickly with the simple click of a button .
I would be inclined to think that the pain physician who performed the procedure was also named in the suit. I'd be curious to know if this patient was anti-coagulated. No mention is made in the notes. Injection through the interlaminar route with a patient on anticoagulants is a much high risk for epidural bleed especially if using a larger gauge spinal needle. The patient has spinal hardware with altered anatomy, so was the injection done above or below the fusion? I'm inclined to think it was above the fusion possibly at L1-L2 with difficult anatomy secondary to adjacent segment deterioration. This could result in a traumatic or difficult needle placement and high risk of bleed adjacent to the conus.
They weren't named in this lawsuit at all from start to finish, which is just odd. I wish we had some of the records and the op note but unfortunately it was left out of the public court records so we're left guessing as to any further details.
I will say that documenting reflexes CAN help prevent a lawsuit. I served as an expert witness for the plaintiff on a case of missed spinal epidural abscess where 6 hrs after the patient was discharged he returned with clear findings of weakness and incontinence. I found the ED doc was not below the SOC because he documented good strength and reflexes. Also, the patient adamantly denied IV drug abuse which was a lie. If a patient has good strength, good reflexes, no saddle paresthesia, and no incontinence then it is highly unlikely they have SEA or CE.
On a separate note prior to having 24 MRI at my shop we did have an on call tech, but we had to test and document decreased rectal tone and increased post void residual in order to call the tech in. Now our problem is we have 24 MRI but there always seem to be a long wait because everyone both input and outpt is getting one.
Thanks for the insight and the counterpoint about utility of reflexes! You are a good expert witness to make that call... seems like so often the plaintiffs don't really care at all and they just shotgun name everyone anyway. We need more ethical work on the plaintiffs side.
Needing to document decreased rectal tone or elevated PVR is asinine and reveals poor medical knowledge of the radiologist group or ED admin who created that rule. You can have emergent spinal cord pathology with normal rectal tone and normal PVR. Spinal epidural abscess, hematoma, cauda equina and cona medullaris are not the only spinal cord emergencies.
As a simple example, one can have a disc herniation with acute spinal nerve root compression causing motor weakness of an extremity without the aforementioned findings and that is an emergency. Time to decompression in this case dictates motor function outcome.
I've always struggled with PVR because its hard to choose a cut-off for continual variables (I supposed this applies to a lot of medical tests but I feel it most acutely with PVR).
I will admit I haven't heard of anyone doing emergency decompression for nerve root compression, even if there is weakness. Only if there's cord compression or cauda equina. If you know of any good resources of clinical guidelines about this please let me know!
I believe it depends on the degree of motor weakness, the surgeon's management style, as well as the patient's surgical risk profile. However, conceptually, if the nerve root is being compressed enough to cause motor deficits, there's a risk that this could become permanent if not decompressed. Time is nerve.
My training was that any back pain with motor deficit is a surgical emergency until proven otherwise and requires an emergent MR and spine consult. The surgeon still may elect for conservative management, depending on factors mentioned above. Sensory deficits do not meet the threshold for emergent decompression.
I'll take a look for specific guidelines for this and post here if I find any, though it may be a dogmatic algorithm.
Also curious to hear others' thoughts and practice style on this.
Thanks for the info, I learned something new from it!
The ED doc was within a few years of residency and pretty new to the hospital. Those are the docs who are likely to be on their own at night. Experience matters. An ED doc with 30 years of experience can get away with calling the neurosurgery attending and saying, “Hey, I’ve got this lady here who had a procedure earlier today, and now she is in excruciating pain and has asymmetric motor findings. I need you to come in.” A doc with 3 years of experience is going to be reluctant to make that phone call, more dependent on imaging, and probably use more tenuous wording.
“Good judgement (aka”Wisdom”) comes from having experience. Experience comes from bad judgement”-a residency mentor, about 50 years ago:) Or that’s about how I remember it. BTW, in my both spine, n my other line of work, there’s likely nfw the only party sued was the ED doc. The pain management guy who did the shot, then did not f/u, someone in radiology, n whoever refused to admit her In neuro/anesthesia for timely evaluation would have been sued, in my day. But that was before the hospitals/bean counters bought up all the referral sources and everyone became employee-providers.
I'm guessing the rest of the docs reached a pre-trial settlement. That's the only way this makes remotely any sense to me. And the ED doc didn't want to settle because it wasn't their fault.
Would you settle if you were the ED doc?
Probably. Writing all these cases has made me way more likely to just want to settle in general. Especially if my documentation was this poor (which it sometimes is, no one is perfect). It would be kind of infuriating to settle if I think I really provided good care, but I've seen too many things go wrong for the doctor at trial. Not to mention years of stress and anticipation for a trial. Best to leave the ego out of it, let your insurance pay out, and move on with life.
You know what might be a useful post is what happens to your career if you settle? Filling in all these credentialing applications with long sections about your malpractice history - what happens when you need to get your next job or next hospital credentialing once you have a settlement, or even a lawsuit to explain?
Short answer is that basically nothing happens if you settle. Doesnt affect your career or job prospects at all. Now if there was something really egregious like assaulting a patient, or if you're getting sued multiple times per year, those could actually change things. But just a standard med mal case you settle has zero repercussions.