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Dr Andrew Cooke, Advanced Trainee in Emergency Medicine, St George Hospital & Community Health Service - Misdiagnosis in the ED: Bounce Back Patients and an Overview of the Medico Legal Issues

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Dr Andrew Cooke delivered the presentation at the 2014 Medico Legal Congress. …

Dr Andrew Cooke delivered the presentation at the 2014 Medico Legal Congress.

The Medico Legal Congress this is the longest running and most successful Medico Legal Congress in Australia, bringing together medical practitioners, lawyers, medical indemnity organisations and government representatives for open discussion on recent medical negligence cases and to provide solutions to current medico legal issues.

For more information about the event, please visit: http://www.healthcareconferences.com.au/medicolegalcongress14

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  • 1. Dr Andrew Cooke 23rd Annual Medical Legal Congress Thursday 27 March 2.00pm Dr Andrew Cooke MBBS (Hons); LLB (Hons); LLM (Hons) (Cantab) Emergency Medicine Registrar & Advanced Trainee, St George Hospital Board Member, Clinical Excellence Commission, NSW Health Board Member, Agency for Clinical Innovation, NSW Health
  • 3.  http://www.wimp.com/awarenesstest/
  • 4.  Aims: ◦ What we know about Bouncebacks & misdiagnosis in the ED ◦ Thinking & Bouncebacks & misdiagnosis in the ED ◦ Thinking & the legal standard ◦ Case examples ◦ Conclusions
  • 5. Using the commonly accepted turn - around time of 72 hrs, the incidence of patients who make an unexpected return (a bounceback) to the ED is between 3 – 10% (See Pierce JM et al 1990; Sklar D et al 2007)
  • 6.  System (18%)  Environment (unique to the ED) (10%)  Patient related (50-53%)  Doctor/Healthcare provider (15 – 25%) ◦ Of which diagnostic error is the major cause
  • 7.  Systems ◦ ie things got missed (ie a missed fracture) due to poor radiological reporting or poor systems in place to follow this up (see Pierce JM et al. 1990)  Environment ◦ ie over-crowding and decision making density ◦ Patients sent home under conditions of over-crowding the morbidity and mortality at one week was linearly related to the degree of overcrowding (see McCarthy ML. 2011)
  • 8.  Patient related ◦ Arrived by ambulance 3 x more likely to bounceback (see Martin Gill et al 2004) ◦ Age > 65 (see Gabayan et al 2013) ◦ Atypical presentation of an uncommon problem; patients with chronic disease becoming decompensated; patients with abnormal vital signs; and patients with a comorbid mental health/dependence issue. (see Sklar D et al 2007)  highest rate of unexpected death within a seven day discharge  60% of these had a medical error associated ◦ Dehydration and diarrhea; abdominal pain; chest pain; headache; seizure; uti; sore throat (see Gordon et al 1998)
  • 9.  Doctor/health care provider ◦ Diagnostic error by an MO in up to 20% of cases was identified as the reason for a bounceback (see Pierce JM et al 1990) ◦ Incidence of bouncebacks due to a serious medical error is between 18 – 35% (see Nunez S et al 2006) ◦ Of the medical errors made, a misdiagnosis (either a failure to diagnose or an incorrect diagnosis) represents over 40% (see Brown et al 2010) ◦ Misdiagnosis related claims >50% of claims associated with emergency medicine (see Australia‘s medical indemnity claims 2011 – 2012, AIHW)
  • 10. “provider did not think the test was required 93% of the time…” ???
  • 11. CEC Clincal Focus Report – Diagnostic Tests 2011
  • 12.  “Review of malpractice claims have a morbid attraction that is similar to gazing at crash scenes. Both provide the observer with a vicarious, cathartic experience…”  “Both hindsight and outcome bias have been convincingly demonstrated in a number of fields, including medicine. These biases are powerful and insidious and make it hard for historical analysis (such as RCA or closed claim reviews) to yield useful understandings of accidents or adverse events…Thus reviewers who know the outcome of a case glibly judge cues to the correct diagnosis as being much more evident than they actually where and routinely overestimate the probability of the observed outcome.”  “We need to better understand practitioners in the „wild.‟” Wears RL and Nemeth P. Replacing Hindsight With Insight: Toward Better Understanding of Diagnostic Failures Ann Emerg Med 2007 49(2) at 206
  • 13. ◦ What we know about Bouncebacks and misdiagnosis in the ED ◦ Thinking & Bouncebacks in the ED ◦ Thinking & the legal standard ◦ Case examples ◦ Conclusions
  • 14.  How do we think about diagnosis? ◦ Dual Process Theory  System 1 (intuitive, heuristics) vs System 2 (rational and logical)  See Croskerry P (2009) ◦ Metacognition  Alive to biases and heuristics and understand how they operate in our decision and diagnosis making processes - cognitive interventions  See Graber M (2012)
  • 15. ◦ What we know about Bouncebacks and misdiagnosis in the ED ◦ Thinking & Bouncebacks and misdiagnosis in the ED ◦ Thinking & the legal standard ◦ Case examples ◦ Conclusions and challenges
  • 16.  System 2 thinking (logical, analytical, reasonable) and the „standard of care.‟  To what extent are cognitive reasoning processes taken into account by the Courts in determining whether what was done was „reasonable‟?  How will the growing literature on cognitive reasoning and the processes influence and inform the standard of care expectations?
  • 17.  s 5O Standard of care for professionals (1) A person practising a profession (“a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considered that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
  • 18.  If the [defendant] acted in a manner that was widely accepted by peer professional opinion as competent professional practice then subject to rationality that professional practice sets the standard of care. (Court of Appeal in Dobler v Kenneth Halverson [2007] NSWCA 335 per Giles JA)
  • 19.  What is (ir)rational (or in Victoria, unreasonable)? ◦ Irrational by what reference point?  Decisions made on incomplete information, changing conditions and uncertainty (this is ED medicine) are probably irrational.  The ED doctor (busy, multiple patients, needing to keep the department moving..) is probably irrational.  Because the decision made turned on heuristics and implicit biases (not a system 2 thought process) is this irrational? ◦ Or as in Bolitho:  “if it can be demonstrated that the professional conduct is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible…” (see Bolitho [1998] 1 AC 232, 241–2) ◦ Logical analysis (System 2) vs judgment/instinct (System 1)  Clinical decision rules/guidelines/provision of decision support at the point of care
  • 20. ◦ What we know about Bouncebacks and misdiagnosis in the ED ◦ Thinking & Bouncebacks and misdiagnosis in the ED ◦ Thinking & the legal standard ◦ Case examples (tribunal; court; coroner) ◦ Conclusions and challenges
  • 21.  58 year old man presents to a tertiary ED  Abdominal pain and vomiting.  Category 2 for pain and tachycardia (130): ―This is like my renal colic Doc”. Phx HTN and smoker  ECG SR no ischaemic changes; U/A – moderate blood; HTN 150/80.  High analgesic requirement in ED but eventually settles.  Remains hypertensive (150 – 160 systolic) and discharged home.  Renal colic. No US attempted (patient obese).  Local protocol recommends CT KUB to confirm stone/exclude other pathologies ie (a leaking abdominal aneurysm) if: over 50 or diagnostic uncertainty.  Four hours later, bouncesback to ED after a collapse at home. Dies from massive haemorrhage and shock secondary to ruptured abdominal aortic aneurysm.
  • 22. NZ Health & Disability Commissioner – ED Registrar (Dr C) and Otago District Health Board (2008) System 1 vs System 2  System 1 (quick, pattern recognition, confirmation by a single positive test) vs System 2 (logical, stepwise approach; any features that don‘t fit difficult u/s exam; persistent hypertension)  Based on simple pattern recognition; an intuitive response (System 1) vs logical (System 2) (illogical to ignore a guideline?) Metacognition  Multiple factors  Framing effect (―this is like my renal colic‖)  Anchoring bias (―UA was positive‖), choose to ignore other high risk factors for a vascular catastrophe  Cognitive overload (registrar was exhausted)  Availability bias (renal colic is a familiar dx) ―…was working alone and with an unsafe workload. He was tired and hungry and did not have an adequate opportunity to consider this case in a measured manner..‖ (No System 2) ―…Senior Emergency Physicians use judgement and experience to make a diagnosis and reduce needless investigations and consultation, regardless of guidelines. Registrars strive to emulate this pattern and must make independent decisions in order to progress…‖ (System 1 expressly favoured)
  • 23.  A 37 year old man. Presents to ED. Triage category 4 (PR 130). Looks well.  Diarrhea, sore throat, headache, cough and difficulty breathing.  Phx asthma and frequent alcohol consumption. Smoker.  Moderate dehydration and likely viral bronchitis. Tx.  2hrs later vitals are recorded and abnormal, but looks well. DC‘d.  Tachycardia? not unusual due to a combination of his acute illness, use of ventolin (a bronchodilator) and moderate dehydration.  Bouncesback to GP next day worse: ―patient has bronchitis….viral illness‖, notes a persistent tachycardia (PR 113). Differential of cardiomyopathy.  Two further consultations with GP and investigations. Referral made to a cardiologist (day 5 of illness) .  Final bounceback patient suffers asystolic arrest due to cardiomyopathy.
  • 24. McKay v McPherson [2010] VCC 585  Both doctors (ED and GP) found negligent and in contravention of Wrongs Act (Vic) for not acting on abnormal vital signs (and not referring earlier). Note taking and documentation.  System 1 vs System 2 ◦ Other available alternatives to explain the patients persistent tachycardia and low oxygen sats (System 1: ―Looked well..‖). Documentation lacked any reflection of cognitive interrogation ◦ The wrong option is to summarily dismiss an abnormal finding, without noting that it has been identified and how its presence factors into the decision making process (System 2) ◦ ―…the defendant adhered to a provisional diagnosis even when symptoms persisted which should have made the doctor reconsider his or her initial diagnosis‖ — O’Shea v Sullivan (1994) Aust Torts Reports 81-273 (System 2)  Metacognition ◦ Diagnostic momentum – the biggest impediment is a prior diagnosis
  • 25.  A 52 year old man.  Past history of cannabis abuse, IVDU and depression.  Other past hx includes diverticulitis.  Presents to ED with abdominal pain and constipation.  ED doctor notes record “unkempt appearance, underweight and frequent requests for pain relief..” [in the setting of known drug user]  Abdominal xray showed some faecal loading.  Surgical review, treated with partial relief with an enema and discharged from ED.  Bounceback - dies next day from perforated diverticulitis
  • 26.  NSW Coroner’s Inquest into the death of Michael Sutherland (2011)  System 1 vs System 2 ◦ Coroner found that the diagnosis of constipation brought about by drug use and now drug seeking behaviour was fundamentally flawed. ―…the [ED Doctor] had stereotyped [the patient] as a substance abuser…‖ and ―..led her prematurely close her mind to other alternatives…‖ (a complete failure of System 1) ◦ Pervading stereotype of the patient informed all decisions going forward.  Metacognition ◦ Express reference to cognitive pyschology around error ◦ ―Availabilty heuristic‖ (constipation and drug use an easy diagnosis to make) and ―premature closure‖
  • 27.  Recognize the high risk features for a bounceback as early as triage and before a diagnostic decision needs to be made  A lot of what we do in ED expressly turns on System 1 thinking (the patient looked well; there was a clear pattern to the diagnosis…) ◦ We need a System 2 “check” point ◦ Documentation  There is a preparedness in the decisions for dual process theory and “cognition” to feature in determinations of the appropriate standard.
  • 28. ◦ What we know about Bouncebacks and misdiagnosis in the ED ◦ Thinking & Bouncebacks and misdiagnosis in the ED ◦ Thinking & the legal standard ◦ Case examples (tribunal; court; coroner) ◦ Conclusions
  • 29.  We work in a system and a professional culture that rewards the appearance of certainty over reality. ◦ The need of the patient vs the need for a diagnosis  In the ED we don‘t deal with diagnosis, we deal with probability and risk. ◦ Patients with chest pain - we have abandoned our quest for diagnostic perfection  When the diagnosis is made/pursued the thinking stops and a ‗diagnosis‘ as the ultimate truth is dangerous - the ‗flawed diagnostic paradigm‘ (Dobler v Halverson [2007] NSCA 335)  For some pathologies the standard of care will be to miss it.  Embrace patients in this uncertainty – shared decision making
  • 30.  Will understanding how we think make a difference to bouncebacks? ◦ Not yet clear –need quantitative data about decisions at the point of care to support the narrative ◦ Need ―ownership‖ of the problem (Dr Mark Graber see HARC presentation 2013 https://www.saxinstitute.org.au/category/events/harc-forums) ◦ Fear  Medico-legal fraternity ◦ Medical indemnity – what is expected? Decision support? Decision training? ◦ Experts – quality of the decision vs quality of the decision making; role of cognitive psychology and understanding where we are in the decision making pathway? ◦ Litigators – will these considerations influence the standard of care - ? Directly (expected that doctors should be more aware of cognitive errors/decision making models as part of their ‗duty of care‘); Indirectly? Peer professional defence and irrationality (? Logical; reasonable; system 2 theories) ◦ Academics – A different assessment? Reasonable standards (in decision making..)
  • 31. AIMS CONCLUSIONS What we know about Bouncebacks & misdiagnosis in the ED? Big deal in terms of liability Thinking & Bouncebacks & misdiagnosis in the ED Growing pressure of literature telling us that dual process and metacognition is key Thinking & the legal standard A different question? (decision quality versus decision content) Case examples System 2 Conclusions An opportunity
  • 32. Dr Andrew Cooke 23rd Annual Medical Legal Congress Dr Andrew Cooke MBBS (Hons); LLB (Hons); LLM (Hons) (Cantab) Emergency Medicine Registrar & Advanced Trainee, St George Hospital Board Member, Clinical Excellence Commission, NSW Health Board Member, Agency for Clinical Innovation, NSW Health