Medical Malpractice Insights: “Sign right here and you’re good to go”

Facts: An adult female presents to the ED with dental pain. Past history is positive for an allergy to penicillin. Exam reveals a tender molar with gingival redness and minimal swelling. She is given a prescription for clindamycin, advised to see her dentist within 1 week, and discharged with printed instructions regarding “Dental Abscess.” No such instructions were given for a 10-day course of clindamycin. She fills her prescription at a chain pharmacy drive-up window where counseling is allegedly offered but declined. She sees her dentist as directed and is advised to finish the remainder of her antibiotic prescription. Ten days later she develops diarrhea and is quickly diagnosed with C. difficile enterocolitis. Complications result in a total colectomy with its accompanying lifestyle changes. An attorney is consulted, and a lawsuit is filed against the EP, the hospital, the pharmacy, and the dentist.

Plaintiff: You never gave me any information about clindamycin or told me to get checked if I developed diarrhea. Clindamycin is a dangerous drug that can cause C. difficile colitis. It even has a black box warning in the PDR. Your EHR has instructions on clindamycin that you could have printed out and given to me, just like the instructions about my “Dental Abscess.” Because you never warned me, I had no reason to connect the antibiotic to the diarrhea that started 10 days after I stopped it. If you had warned me about it, I would have made the connection, taken it seriously, called my doctor, still have my colon, and not be pooping into a bag.

Defense: Clindamycin was the best antibiotic to use for your dental abscess, even with its side effects. Any antibiotic can cause diarrhea and colitis; in fact, cephalexin is the most common cause. Doctors and nurses rarely use the written medication instructions in the EHR, but we always verbally warn every patient about watching for diarrhea when an antibiotic is prescribed. We just don’t document it. Giving written instructions about a drug is the pharmacist’s job. Even though you declined the pharmacist’s counseling, you got written instructions with your receipt and a sticker on the bottle with the most common or most serious side effects. That’s standard practice in all pharmacies. And your “Dental Abscess” instructions told you to return if you had any new symptoms. And finally, your dentist should also have warned you about the side effects when she told you to finish the course of antibiotics.

Result: Pre-trial settlement against the hospital and EP for a minimal amount. The dentist was dismissed from the case as was the pharmacy chain, the latter on a legal technicality that assigns liability for medication instructions to the prescribing physician.

Takeaways:

• Most EHR’s come with printable medication instruction sheets. Take advantage of them.
• Many of the drugs we prescribe have predictably side effects (oxycodone, benzos, etc.).
• If we don’t use printed instructions, document our verbal instructions regarding the most common side effects of the drug(s) being prescribed.
• Documenting our warnings should be standard care.
• Rashes, nausea, vomiting, and diarrhea are the most common side effects of antibiotics. Patients should always be warned about them.
• Assuming that the pharmacist will warn patients of side effects is risky. State regulations and codes may place that responsibility on our shoulders.
• The Joint Commission and CMS have standards for discharge planning that require patient education about new drugs prescribed.
• A record that the patient acknowledged receipt of discharge instructions is a valuable defense.

References:

• “Sign Right Here and You’re Good to Go”: A Content Analysis of Audiotaped Emergency Department Discharge Instructions. Vashi A, Rhodes K. Ann. EM, April 2011.
• emDOCs Podcast – C. difficile colitis infection updates
• Clostridium Difficile Colitis. Aberra FN. Medscape eMedicine. Updated: Jun 7, 2023.