Review of Lawsuits Related to Point of Care Emergency Ultrasound Applications

Background

Point-of-care (POC) ultrasound has become heavily integrated into clinical practice in emergency departments (ED). Ultrasound training is now standard in emergency medicine (EM) residency programs and most emergency physicians are able to independently perform and interpret bedside ultrasounds exams. With the rise in use of POC ultrasound by emergency physicians, there is an accompanying theoretical increase in malpractice risk. Malpractice risk can potentially arise from failure to perform an adequate study, failure to interpret findings accurately, or misdiagnosis. This increased liability has prompted some emergency physicians to avoid POC ultrasound in their own practice to decrease their personal risk or transfer risk to consulting services, such as radiology. However, the opposite argument could also be made that failure to incorporate ultrasound into one’s emergency medicine practice can leave clinicians susceptible to legal action as well. This study aims to build on the work of Blavais et al, which revealed that from 1987-2007 there was only one identifiable malpractice lawsuit associated with POC ultrasound. Given the increased use of POC ultrasound since the prior study, this article aims to further characterize the nature of malpractice lawsuits associated with POC ultrasound in more recent years.

Review of lawsuits related to POC emergency ultrasound applications

Clinical Question

With the increased use and scope of practice of POC ultrasound in EM, is there an associated increased  legal risk to emergency physicians performing POC ultrasound?

Methods & Study Design

  • Design
    • Retrospective review of Westlaw database for reported decisions in state and federal malpractice cases involving POC ultrasound
      • Westlaw database include state and federal case law and statutes, and public records
  • Population
    • Published case law in the US from Jan 2008 – Dec 2012 in the Westlaw database
  • Inclusion criteria
    • Cases were included if:
      • Physician was accused of misconduct
      • Patient encounter was in ED
      • Interpretation or failure to perform ultrasound was discussed to any degree
      • Ultrasound application was within ACEP ultrasound core applications (trauma, intrauterine pregnancy, AAA, cardiac, biliary, DVT, urinary tract, soft tissue/MSK, thoracic, ocular, procedure)
      • Ultrasound exam performed or ordered through a radiology department was within scope of ACEP core emergency ultrasound applications
  • Exclusion criteria
    • There were no specific exclusion criteria. However, cases settled out of court, cases with unreported decisions, and cases not publically available (private negotiations, arbitration, sealed records, etc) were not available for analysis through the Westlaw database.
  • Intervention
    • Westlaw database was reviewed for published case law (federal and state) in the US from Jan 2008 – Dec 2012
    • Search terms included “ultrasound”, “sonography”, “emergency”, “physician”, “doctor”
    • Emergency physicians with emergency ultrasound fellowship training reviewed case records that were identified via search. Specific case information was collected. Any discrepancies were discussed between the two reviewers to reach a consensus.
  • Outcomes
      • The follow case information was collected:
        • Basic clinical narrative of case
        • Exam type involved
        • Department that performed exam
        • Broad category of type of allegation (i.e. misdiagnosis, failure to interpret, failure to perform, failure to perform in timely manner)

Results

    • 120 records matched initial search criteria; 7 of these matched inclusion criteria
      • 2 out of 7 were reviewed and found to be outside the scope of ACEP core ultrasound applications
    • 5 identified malpractice cases relating to POC ultrasound in the ED
      • No cases resulted from misdiagnosis with POC ultrasound or failure to interpret POC ultrasound
      • All cases involved failure to perform a complete ultrasound study or failure to perform in a timely manner
      • Most common exam type was DVT study
      • Majority of cases involved patient death

Strengths & Limitations

  • Strengths
    • Provides valuable data on legal landscape of POC ultrasound
    • Study was designed to identify cases where emergency physicians not only performed but could have performed an ultrasound exam. This allows for potential assessment of “deferred risk”.
  • Limitations
    • Small n – Small number of cases limits ability to approximate any measure of risk to emergency physicians using POC ultrasound
    • Selection bias – Cases settled out of court, cases with unreported decisions, cases not publically available (private negotiations, arbitration, sealed records, etc) not included in Westlaw database
    • Limited assessment of other factors associated with each case: emergency physician ultrasound skills, access to ultrasound, level of facility support, barriers to perform ultrasound, medical decision making process

Author's Conclusions

“From 2008 to 2012, the Westlaw database reported no judicial decisions against an emergency physician performing POC ultrasound. The database reports five cases related to failure to perform an ultrasound examination that was within the scope of ACEP core emergency ultrasound applications in a timely manner. Further analyses using other legal data sources and insurance claim data are desired and further work is necessary to confirm these preliminary findings.”

Our Conclusions

This study provides reassuring evidence that emergency physicians are not significantly burdened by malpractice lawsuits relating to POC ultrasound use in their clinical practice. In a comprehensive search of publicly available federal and state US malpractice claims, only five cases were found to be associated with POC ultrasound. However, this number must be interpreted with caution. Rubin et al demonstrated that a very small percentage of paid malpractice claims in the US are judged in court (3.1%) while the majority are settled outside (96.9%). The Westlaw database used in this study was able to access only publicly available case data, or cases that were judged in court. Thus, it is difficult to draw generalizable conclusions about the legal risks associated with POC ultrasound from this study. Overall, this study reveals that within publicly available malpractice claims data, lawsuits relating to POC ultrasound are in the minority. While there is legal risk associated with use and failure to use available diagnostic modalities, emergency physicians should feel encouraged to incorporate POC ultrasound exams into their clinical practice.

The Bottom Line

Though the data is limited, there is some reassuring evidence that there is no significant legal burden associated with POC ultrasound used within the scope of ACEP core emergency ultrasound applications. Emergency physicians should continue to incorporate POC ultrasound into their clinical practice.

Authors

This post was written by Neha Chandra, MS4 at University of California, San Diego. It was reviewed by Michael Macias, MD, Ultrasound Fellow at UCSD.

References

      1. Rubin, Jessica B., and Tara F. Bishop. "Characteristics of paid malpractice claims settled in and out of court in the USA: a retrospective analysis." BMJ open 3.6 (2013): e002985.
      2. Stolz, Lori, et al. "A review of lawsuits related to point-of-care emergency ultrasound applications." Western Journal of Emergency Medicine 16.1 (2015): 1.

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