Working in the emergency department (ED) is challenging – ED patients are complicated, at times suboptimal historians, and occasionally present with symptoms caused by serious, life-threatening conditions. ED personnel have to make critical decisions quickly and expertly, sometimes based on limited information. Furthermore, the time available for diagnosis is limited in the ED and follow-up after ED discharge can be variable. Dealing with ED patients who present with acute headaches can be frustrating for the clinician. Headache patients may have unrealistic expectations for their ED visit. Because of the inherent complexities of the ED (e.g., limited time and access to information for diagnosis, suboptimal historians, lack of follow-up, etc.), risk management is also a concern.

Based on 2007–2008 data from the Physician Insurers Association of America, ED physicians ranked fifth in frequency of malpractice claims after obstetrics/gynecology, general surgery, surgical subspecialties, and radiology (Box 8.1) [1]. A review of claims resulting from an ED visit over a period of 23 years identified 11,529 claims [2]. Four out of five cases were made against non-ED staff who had provided care in the ED, with the largest awards against anesthesiologists, neurologists, and psychiatrists (Box 8.2). Headache did not make the list of top ten diagnoses associated with malpractice claims in the ED.

FormalPara Pearl for the practitioner:

About 80% of claims attributed to ED visits are against non-ED staff who provided services to ED patients. Headache is not a common diagnosis associated with ED malpractice claims.

 

Melinda’s case illustrates several important points. First, although Melinda has a history of migraine, her current headaches suggest several alternative diagnoses. Patients regularly using acute medications for the management of headache more than 3 days per week are at risk for developing analgesic overuse headache (Boxes 8.3 and 8.4), which used to be called rebound headache [3, 4]. For these patients, the overuse of prescription or nonprescription analgesics is believed to result in a up-regulation of serotonin receptors in the brain that makes the person more susceptible to headaches [5]. Headaches tend to become more frequent, more severe, and less responsive to treatment. Increasing analgesics escalates the headache problem and patients need to be treated with analgesic medication taper, with headaches usually improving over several weeks to months. Patients with suspected analgesic overuse headache should be provided with written information to reinforce the doctor’s recommendation to limit problematic medications (Box 8.5). Melinda might also have had a new type of headache related to her recent head trauma or other medication conditions, including infection that was suggested by her report of fever.

Pearl for the practitioner:

Regularly using analgesics 2 or more days per week tends to aggravate chronic headaches, turning intermittent headaches into daily problematic headaches called analgesic overuse headache.

Second, this case illustrates the need for ED providers to remain objective and calm when patients become emotional and demanding. Doctors also need to ensure that their own frustration with a busy ED and a demanding patient does not cloud their judgment and cause them to take shortcuts that might result in avoidable diagnostic errors. This chapter provides tips for identifying common sources of errors and suggestions for minimizing errors and conflicts with demanding patients.

Finally, this case shows how engaging in negotiations over the use of inappropriate medications suggests to the patient that this type of bargaining is appropriate. Even when the doctor does not acquiesce to inappropriate patient demands, these encounters teach patients that this type of behavior is acceptable for future ED visits. Using a consistent, caring but firm approach with patients, as will be described below, has been shown to reduce future inappropriate ED visits.

The “Difficult Patient” Encounter

Most healthcare providers identify “difficult” patients as those who are angry, uncooperative, and demanding. In the ED headache patient, this is often the patient who, like Melinda in our case, says, “The only thing that ever helps my headache is a shot of Demerol or Dilaudid. And I’m not leaving until I get it!” Although the focus is often placed on the demanding patient, frustrating and nonproductive patient–healthcare provider encounters can usually be attributed to a combination of patient, healthcare provider, and situational factors (Table 8.1) [6].

Table 8.1 Common sources of conflict and suggestions for reactions to defusing them (based on [6])
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It is important to recognize that “difficult patients” may not be “difficult” people, but individuals under substantial distress due to health concerns [7]. Being a patient in the ED can be frightening and anxiety provoking. Being a patient can be depersonalizing as patients may be asked to reveal intimate details of their personal lives and submit to physical examinations. Recognizing the stress and distress involved with being an ED patient can help make the ED staff more supportive and less likely to react negatively to patient complaints or demands.

Negative staff reactions are generally counterproductive and may aggravate rather than soothe a difficult patient encounter. Physician verbal and nonverbal communication should convey a caring attitude that can help defuse an initially difficult encounter:

  • Stay calm, assured, and avoid raising your voice;

  • Sit down while the patient provides a history;

  • Retain good eye contact;

  • Avoid completing other work while the patient is talking;

  • Show you’re an active listener by reflecting statements back to the patient;

  • Always use effective communication strategies (Table 8.2) [8].

    Table 8.2 Effective communication strategies (based on [8])
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Pearl for the practitioner:

Reflective listening involves paraphrasing what your patient tells you to make sure the meaning is clear when you say it in your own words. Reflective listening is important for effective communication and to show patients that you are engaged or interested in what they are saying. An example would be, “So let me get this straight, you were camping in northwest Wisconsin about 3 weeks before the headaches worsened? Is that correct?”

Recognizing Drug-Seeking Behavior

According to the 2007–2008 National Survey on Drug Use and Health, pain relievers are the second most common illicit drug of abuse after marijuana [9]. Over the last two decades, there has been a marked increase in the use of opioids for the treatment of chronic nonmalignant pain, with an unfortunate increase in the prevalence of opioid abuse (Box 8.6) [10]. Consequently, healthcare providers, including ED staff, will likely be confronted with patients feigning or exaggerating illness to receive drugs of abuse. It is estimated that an ED treating 75,000 patients annually can expect up to 262 monthly visits from patients seeking drugs [11].

Surveys report comorbid substance abuse in up to one in three ED visits [12, 13]. Many kits are available that can quickly test for drugs of abuse. Obtaining a rapid turn-around urine drug screen for possible illicit drug use early in the visit can provide valuable information to the treating clinician. The ED can also be an excellent venue for initiating referrals for substance abuse evaluation and treatment among patients suspected of having abuse problems (Boxes 8.7 and 8.8) [11, 14, 15].

Box 8.8 Six Characteristics Linked to Opioid Seeking in the ED (Based on [15])

  • Using an alias

  • Requesting to be seen by specific or different doctor

  • Noncompliance with primary care appointments

  • Reporting lost, stolen, or damaged medications

  • Displaying threatening or abusive behavior when a prescription is denied

  • Physician uneasiness over prescribing a controlled substance

Approaching the Patient Who Insists on Inappropriate Treatment

Headache patients who insist on a specific therapy may do so for several reasons. They may have had previous good success with that treatment; they may have heard about the effectiveness of this treatment from others; or they may be seeking medication for other purposes, e.g., opioids for recreational use. Providing patients with clear messages and explanations can help reduce inappropriate demands. It is important to clearly define early on in the encounter what the provider will and will not do to treat the headache pain. It is important to remember that physicians are under no obligation to provide specific options or prescribe medications that they are not comfortable prescribing. In cases where patients are requesting a specific medication that you would not feel comfortable providing, be clear that you do not provide this therapy and provide reasons for not prescribing (e.g., Demerol may not be prescribed because of too many side effects, the risk for accumulation of dangerous metabolites, and limited efficacy for headache pain).

Consistently implementing specific strategies to reduce inappropriate ED visits was shown to be successful in a pilot study of problem patients [16]. In this study, 24 patients identified as frequently making ED visits for chronic conditions and displaying drug seeking or abusive behavior were treated with the following restrictions:

  • Prescriptions for opioids and benzodiazepines were not provided;

  • Patients were referred to a primary care physician and appropriate additional services;

  • Attention-seeking behaviors were not rewarded by “fast-tracking” patients into an examination room rather than allowing patients to disrupt the waiting room;

  • Patients were given supportive counseling.

The number of ED visits decreased from 616 visits during the 12 months before implementing these strategies to 175 during the year after changing the ED approach. Having a clear approach that was understood and consistently applied by the ED staff were the keys to the success of this program.

Patients need to understand that you will not get involved in a treatment negotiation. One useful approach is to use the acronym BOSS to frame the visit:

  • B for boundaries

  • O for options

  • S for scripting responses

  • S for sincerity

Boundaries

Boundaries should be established early in the patient encounter, clarifying what the provider is and is not willing to do (Table 8.3). By explicitly outlining the recommended treatment approach, the eventual “test of wills” that can occur (“I am not going to leave until I get my Demerol” vs. “There is no way that I am going to give in this time”) can be avoided or minimized. Many times, when a drug-seeking patient knows from the start that they will not be given narcotics, they realize that they are wasting their time and leave.

Table 8.3 Setting boundaries for therapeutic options
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Options

As described in Chap.  4, there is a broad assortment of possible effective treatments for common primary headaches, like migraine, seen in the ED. Utilizing a full range of possible treatments provides a number of potential nonopioid treatment options that will usually include therapies tolerated by patients reporting numerous medication sensitivities and allergies.

Scripting Responses

Having a clear, concise way to consistently explain the headache treatment approach offered to an individual patient and the rationale behind these recommendations can be extremely useful in the ED. Anticipating common concerns or issues that patients may have and utilizing practiced responses can improve the confidence the practitioner displays to the patient and help avoid confrontations (Table 8.4).

Table 8.4 Common patient concerns and possible ED staff responses
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Sincerity

While some headache patients in the ED may be drug seeking, most patients are in the ED because they are having problematic headaches and they are sincerely looking for an evaluation and headache relief. Treating all patients with respect goes a long way toward defusing potentially unpleasant encounters. It is important to be compassionate when refusing to provide an inappropriate therapy that a patient may be requesting and clearly stating that the requested medication is considered to be inappropriate and may be potentially harmful for the patient [11]. The healthcare provider’s attitude and demeanor should help the patient see that the provider is working in the patient’s best interest, even when the provider is not dispensing therapy that might have been expected or requested by the patient.

Pearl for the practitioner:

Be the BOSS when confronting patients making unreasonable requests:

Set appropriate Boundaries to let patients know early on what you are and are not willing to prescribe

Utilize a range of treatment Options so you have a full armamentarium to use in patients who report multiple drug sensitivities and allergies

Script responses to common concerns in advance to improve your confidence in delivering clear answers to typical patient concerns

Show patients your Sincerity by treating them with respect, fully addressing their concerns, and letting them know you won’t provide treatment that you think may cause harm over either the short- or long-term

Reducing the Risk of Litigation

Focusing on effective communication is essential for establishing a patient–physician relationship that includes trust and respect. In addition, recognizing and eliminating common errors in the thought process involved in decision making can help avoid typical diagnostic pitfalls and improve diagnostic accuracy.

Communicating to Reduce Litigation Risk

Research shows that patients often pursue litigation because they wanted greater communication and honesty from their healthcare providers, recognition of the injury they received, and assurances that lessons would be learned from their experience [17]. Attending to achieving effective communication is linked to a reduced risk for malpractice claims in primary care (Table 8.5) [18]. Interestingly, this research found less of a link between the content of a conversation than the process of communication and tone of the visit for predicting malpractice suits. A Canadian survey likewise identified poor communication as a predictor of complaints against physicians, with the most commonly reported reason for the complaint being a problem with physician attitude or communication (57% of all complaints) [19]. While these studies did not specifically evaluate ED patients, the same principles of good communication are important in the ED and will likely similarly reduce a patient’s likelihood of pursuing complaints.

Table 8.5 Communication techniques linked to reduced malpractice risk (based on [18])
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Pearl for the practitioner:

Poor communication is an important predictor of future malpractice litigation.

Recognizing Common Diagnostic and Judgment Errors

Psychologists typically describe physician decision making as a two-step process using the Dual Process Theory [20]. According to this model, the first step involves intuitive, automatic decisions. These decisions are then moderated by the second step that includes analytical reasoning. Doctors need to use both of these steps to improve their diagnostic accuracy. Excessive reliance on initial thoughts in step one can result in a failure to consider diagnoses that are not commonly seen in an individual’s personal practice. Failure to adjust current practice to incorporate well-developed clinical guidelines is another example of excessive dependence on step one decision making. Often, however, initial impressions are correct and excessive reliance on step two can leave doctors endlessly considering additional remote possibilities and constantly second guessing themselves.

Cognitive Errors

A survey of the cases of diagnostic error for 100 retrospectively reviewed internal medicine cases identified cognitive errors (problems with information, data collection, or data synthesis) as the most common cause of error, contributing to errors in 74% of cases [21]. Interestingly, cognitive errors occurred more commonly than technical failures/organizational flaws or errors related to uncooperative or deceptive patients or unusual disease presentations. Cognitive errors were divided into those caused by errors in:

  • Information processing – 50% of all instances of cognitive errors;

  • Information verification – 33%;

  • Data gathering – 14%;

  • Knowledge – 3%.

The most common individual error was termed premature closure, described as a tendency to stop considering other likely diagnostic possibilities too soon in the diagnostic process. Incomplete history and physical examination data, bias toward a single diagnosis, and failure to include the correct diagnosis among the considered choices all contribute to premature closure errors. While this study did not involve an evaluation of ED patients, these same principles can be applied to ED diagnosis (see Table 8.6 for examples of cognitive errors that might occur with the ED headache patient present in Case 1).

Table 8.6 Examples of common cognitive errors
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Pearl for the practitioner:

Premature closure, a tendency to limit diagnostic possibilities too soon during an evaluation, is one of the most common causes of diagnostic errors.

 

The importance of cognitive errors in ED malpractice claims is supported by a review of 79 claims involving a missed diagnosis in the ED that harmed a patient [22]. In this survey, the leading factors contributing to missed diagnoses were cognitive factors (96% of cases). The most common individual areas of error were failure to order an appropriate test (58%), failure to obtain an adequate history or physical examination (42%), incorrect test interpretation (37%), and failure to request consultation (33%).

Signal-to-Noise Errors

Signal-to-noise errors refer to the need to separate important clinical information from the wealth of background noise of data collected from a patient’s history and examination [20]. This can be particularly difficult when presentations of benign and life-threatening diagnoses overlap (e.g., migraine and subarachnoid hemorrhage).

Healthcare provider decisions may also be inappropriately affected by factors that are not related to the likelihood of one diagnosis over another, such as race, ethnicity, and gender. Although these factors may be important for some diagnoses, they often are extraneous to appropriate care and decisions. In a disturbing recent study, race/ethnicity appeared to be linked to likelihood of obtaining computed tomography (CT) imaging in 155 patients with headache seen in the ED [23]. Most patients in this sample were African-American (41%) or Hispanic (33%), with 17% white and 9% other. A CT scan was ordered for 57 patients (37%), with an abnormal result obtained in 6 cases (11%). Abnormalities included hematoma, brain mass, sinusitis, and infarct, none of which were considered to be acutely life threatening. Patients were appropriately more likely to have received a CT when they had a higher predicted severity based on the Emergency Severity Index (ESI) [24] (for patients with ESI  ≤  3, odds ratio  =  5.11; 95% CI 1.53–17.12; P  <  0.01). Patients were disturbingly less likely to have received a head CT if they were African-American (odds ratio  =  0.21; 95% confidence interval [CI] −0.09–0.52; P  <  0.01). Outcome data were not provided to determine whether the presence of abnormalities was higher among certain groups or whether long-term evaluations confirmed that imaging studies were or were not indicated among those patients not receiving an imaging study. These data, however, do highlight the need to ensure that decisions for pursuing testing are based on clinically relevant charac­teristics to make certain that all patients are receiving optimal care.

Attitude Errors

Overconfidence has also been linked to diagnostic errors [25, 26]. Overconfidence may result in failure to consider other diagnosis, failure to consult available resources, and failure to obtain appropriate specialty consultation.

Strategies for Reducing Common Errors

Experts encourage the use of metacognition (defined as “thinking about thinking”) to help reduce common diagnostic errors [27]. Metacognition requires an awareness of limitations in decision making and memory, an ability to step back and see that there may be broader possibilities to a diagnosis than initially identified, and a willingness to critique one’s decision-making process. It is also important to understand common pitfalls in the decision-making process, such as the errors listed above, and recognize how these errors might occur in the ED. Specific strategies for reducing errors are given in Box 8.9 [28].

Box 8.10 Summary Tips on Avoiding Common Pitfalls in Communication and Diagnosis in the ED

  • Keep an open mind – don’t jump to conclusions and avoid limiting your assessment and diagnosis based on irrelevant patient factors, including patient emotional responses

  • Make communicating with the patient a top priority

    • Be an active listener

    • Listen without interrupting

    • Use open-ended questions and reflect statements back to patients to verify good understanding

    • Uses Ask–Tell–Ask techniques to ensure correct information is communicated

  • Remember body language is an important communication tool. If you’re feeling stressed and emotional, take a mini-break to compose yourself so you can present your best, calm, caring, interested self to the patient

  • Don’t take short cuts – use a standard approach for evaluating patients to avoid missing important clues in the history or examination

  • Document clearly – including what your thought processes were, how a diagnosis was reached, and why specific therapies were recommended. When patients have requested a therapy that is not being offered, be sure to document why this therapy was not appropriate/not prescribed

  • Box 8.10 (continued) Obtain written consent for all procedures – use reflective statements when talking to patients to make sure you understand and address their concerns

  • Provide the patient with written instructions about test results, medications given during the visit, symptoms that should prompt a return visit, interim medications, and follow-up (available in Chap.  9)

  • Don’t forget to ask all females about contraception and possible risk for pregnancy. Ask new mothers whether they might be nursing to help guide therapy choices

  • Maintain a current knowledge base of risk factors for drug seeking, pharmacokinetics of common pain medications, drug interactions, and laws regarding scheduled medications

  • Remember to warn patients about avoiding decision making and activities like driving when prescribing therapies with cognitive effects. Similarly, provide written instructions on restrictions after minor head injury, when appropriate (available in Chap.  3)

  • When possible, consult with the patient’s primary care or headache-treating provider

  • Don’t hesitate to ask for a consult for difficult cases or cases where diagnosis or treatment selection is unclear or problematic

 

Understanding Local Malpractice Laws

While most states have similar legal requirements for treating clinicians, physicians must understand the specific requirements that apply to the state where they are practicing. Reviewing how courts instruct jurors to make their decisions in medical malpractice cases can also be helpful.

General guidelines that typically apply to malpractice cases are described below:

  • Physicians generally are not judged on the outcome, but rather whether the standards of care for their specialty were met. Unfortunately, physicians may not agree on the standard of care for many conditions and there can be >1 standard of care or approach to individual problems. Expert testimony is often used to define the standard of care in court.

  • If a physician relies on the “recognized method of treatment” defense, he/she is obligated to have told the patient that >1 recognized method of care was available as part of the informed consent process.

  • Informed consent is becoming a very important malpractice strategy for patients’ attorneys. One of the reasons that informed consent is gaining popularity is that this defense is not based on the standards of care that a reasonable physician would follow, but rather what a reasonable patient would want to know. In many states, expert testimony is not required to evaluate the completeness of informed consent; instead, testimony can be used to determine if the physician provided all of the reasonable options that a reasonable patient would want to know. There have been cases where the physician was found not guilty on the basis of whether he provided care that met the standard of care in the community, but was found guilty on the grounds that he did not provide adequate informed consent.

  • Physicians need to know how their state defines malpractice.

Additional Resources

  • Avoiding Common Errors in the Emergency Department by Amal Mattu et al., 2010.

  • Emergency Medicine: Avoiding the Pitfalls and Improving the Outcomes by Amal Mattu and Deepi Goyal, 2007.

  • Field Guide to the Difficult Patient Interview by Fredric W. Platt and Geoffrey H. Gordon, 2004.

Summary

  • ED physicians ranked fifth in frequency of malpractice claims. However, nearly half of all ED physicians will be sued at some point in their careers. Much can be done to minimize the risk of litigation.

  • Using effective communication techniques, being cognizant of common diagnostic pitfalls, and understanding the laws of the state in which an ED is located can significantly reduce the risk of litigation.

  • The acronym BOSS can help frame the ED visit by setting Boundaries, considering a host of effective Options, Scripting responses to common questions, and being Sincere in your approach to the patient.

  • Prematurely discontinuing consideration of alternative diagnostic options is one of the most common thought process errors during diagnosis setting.

  • Metacognition strategies analyzing the thought process and critiquing decision making can help identify and reduce diagnostic errors.

  • Understanding how your state defines malpractice is important.

  • ED providers should clearly understand the concept of informed consent as it has become a common strategy used in litigation for malpractice attorneys.