Poor triage processes can get you sued, criminally charged

Los Angeles case reflects increasing anger toward EDs

by Stacey Kusterbeck, Contributing Editor

The news stories shocked many Americans: ED staff ignored a dying woman's pleas for help as she bled to death of a perforated bowel on the floor of their waiting room. That is what the family of a Los Angeles woman claim happened in May 2007 at Martin Luther King Jr.-Harbor Hospital's emergency department.

The family has since announced it will file a wrongful death and medical malpractice lawsuit against both the hospital and the triage nurse involved.

Delay in care leading to what may have been a preventable death is nothing new to emergency medicine malpractice litigation, says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT. "Failure to recognize a medical or surgical emergency has always been a source of liability for triage personnel, hospitals, and emergency physicians," he says.

However, malpractice lawsuits involving adverse outcomes before ED patients were seen by a physician are particularly difficult to defend, according to James J. Augustine, MD, FACEP, director of clinical operations for Canton, OH-based Emergency Medicine Physicians. "I have had to try to defend cases where people had a bad outcome in the front end, and they are not easy to defend," says Augustine. "I don't think that the circumstances of this case are that unusual, unfortunately."

Both this case and a July 2006 Illinois case involving a woman who had an acute myocardial infarction caused by acute coronary thrombosis and died in an ED waiting room were both looked at by officials as potential criminal actions.

A coroner's jury ruled the woman's death a homicide, saying that the ED's decision to triage the woman back to the waiting room was a "gross deviation from the standard of care, which a reasonable person would exercise in the situation." No ED staff were ultimately criminally charged in that case.

At presstime, it was not yet announced whether criminal charges will be in fact be filed against ED staff at the Los Angeles hospital. Regardless, if prosecutors felt that the actions taken by ED staff may have cost these patients their lives they would be potential criminal matters. It is a wake-up call for EDs, says Augustine.

"We are at the point in our system development where we have prosecutors who are making these kinds of judgments. That is very, very much a call for us to look at the design of our entire system," says Augustine.

"Both of these cases said that you are not only liable in a civil action, but there is a potential that your activity could be viewed as something criminal. That is a huge transition and reflects the anger that the community has toward the ED," he says.

There is no question that anger and frustration of patients toward EDs are increasing, says Augustine. "It blows me away that we have to get to the point where a prosecutor is considering criminal actions against a department before we say 'Maybe the process that we've been using is not correct,'" he says.

Triage nurses at risk

Prolonged wait times in EDs have become a pervasive problem that increases liability of triage nurses, says Vickie Halstead, RN, CVNS, CCRN, CEN, CLNC, principle of Circle Pines, MN-based The Critical Difference, a consulting firm specializing in emergency and critical care education.

Once a patient arrives and is waiting in the triage area, that patient is the responsibility of the triage nurse, says Halstead. Document the status of patients waiting according to the hospital's standards, which often advocate hourly vital signs and status reports, she advises.

"This is extremely difficult to accomplish when there are 20 or 30 patients waiting and more patients constantly arriving," she says. "Hospitals need to staff the triage area adequately to allow this ongoing assessment of patients who are waiting."

Remember that when you document patient care, you are writing a record of how well you met the standards of care, which only dictate the minimum expected, says Halstead. "Courts may interpret a lack of documentation as a lack of patient care. If triage nurses are monitoring the status of patients waiting, they must take the time to document their findings," she says.

To reduce liability when the ED is full, triage nurses must consult one of the ED physicians to assess patients who are worrisome, says Halstead. "If needed, IV access may have to be established in triage, and treatments initiated while the patient waits," she says. "This obviously requires adequate staffing of the triage area."

To reduce liability risks for patients waiting to be seen in your ED, do the following:

• Do repeated clinical assessments.

EDs should develop protocols and medical records to prompt health care personnel to conduct serial exams on waiting room patients, says Monico. These are necessary to recognize when a change in a patient's condition demands a change in the timing of definitive medical intervention. "Documentation of serial physical exams, patient comfort, and vital signs supports the contention that patients are not being ignored," says Monico.

Your ED could be held liable if courts find that administrators should have had protocols in place requiring triage personnel to reassess waiting room patients, says Monico.

Protocols for assessment and reassessment of patients before physician evaluation are helpful in defending malpractice allegations, but only if they are followed by ED staff, says Augustine. "Crowding of the ED is helpful for a judge or jury to understand, but may not protect the ED staff from charges of malpractice for any individual patient," he says.

• Avoid specifying timeframes for reassessment.

"It's better to be general and not specific, because if you don't meet that 'every hour' rule, then you hold yourself out liability-wise," says Theresa Finerty, MS, RN, CAN, BC, director of emergency and trauma services at OSF Saint Francis Medical Center in Peoria, IL. Instead, protocols should require staff to reassess patients frequently appropriate to their illness, she recommends. OSF's ED policy reads "The initial assessment will be performed on each patient by a licensed registered nurse. Patient diseases, condition, and presentation should direct the caregiver toward the necessary frequency of vital signs and system assessment."

• Be sure that your electronic medical record (EMR) can identify and track high-risk patients in the waiting room.

"The EMR should also have the ability to easily show these individuals on the tracking board," says James R. Hubler, MD, JD, FCLM, FAAEM, FACEDP, clinical assistant professor of surgery in the department of emergency medicine at OSF Saint Francis.

• Utilize ED personnel to assist when appropriate.

"Hospitals may need to adopt a flexible staffing model to address patient volume surges," says Monico. Paramedics or emergency medical technicians (EMTs) may be able to reassess patients, but they can generally only obtain vital signs, and the hospital must have a policy in place for this, says Hubler.

Patient advocates stationed in ED waiting rooms can act as liaisons between patients and triage personnel, says Monico. However, whether paramedics can be used to reassess patients in a crowded waiting room may be subject to state laws and hospital policy.

"Technicians can certainly obtain vital signs. However, vital signs represent only a part of what triage personnel use to assess the urgency of a patient's symptom complex," notes Monico. Liability might also reach hospitals and ED or nursing directors if triage personnel were found to be inadequately trained in triage techniques, he says.

Paramedics and EMTs have the skill set that is needed to greet patients, ask why they came to the ED, do a quick evaluation, and transport patients into care areas, says Augustine. "Paramedics are a natural in for greeting and screening patients, physical movement, and wayfinding," he says. "The reassessment issue is probably a better nursing skill and a core competency of nursing."

More lawsuits coming?

The huge amount of news coverage given the Los Angeles case has unfortunately added "fuel to the fire" when it comes to increased tension between ED staff and patients, according to emergency physicians. "Media coverage of these incidents may cause further perception changes of the emergency care system," says Augustine. "The 'white hat' status of the emergency department and its staff may be darkened, and future encounters with patients and their families may become more confrontational."

The ED needs to carefully preserve an image of being caring and competent, says Augustine. "Legal actions could become more frequent if staff are viewed as uncaring," he adds.

Patients may not perceive long waits and crowded waiting rooms as the basis for a lawsuit in and of itself, says Monico. "However, when a claim of malpractice is made, the long wait usually supports a delay-in-care argument made by the plaintiff," he says.


For more information, contact:

  • James J. Augustine, MD, FACEP, Director of Clinical Operations, Emergency Medicine Physicians, 4535 Dressler Road, Canton, OH 44718. Phone: (330) 493-4443. E-mail: jaugustine@emp.com
  • Theresa Finerty, MS, RN, CNA, BC, Director, Emergency, Trauma and Patient Care Services, OSF Saint Francis Medical Center, 530 N.E. Glen Oak Avenue, Peoria, IL 61637. E-mail: Theresa.R.Finerty@osfhealthcare.org
  • Vickie Halstead, RN, CVNS, CCRN, CEN, CLNC, The Critical Difference, Emergency/Critical Care Education, Legal Nurse Consulting, 5 Oak Ridge Trail Circle Pines, Minnesota 55014. Phone: (763) 786-6645, Fax: (763) 786-6645. E-mail: victoire2@mac.com.
  • James R. Hubler, MD, JD, FCLM, FAAEM, FACEDP, Clinical Assistant Professor of Surgery, Department of Emergency Medicine, OSF Saint Francis Medical Center, Peoria. 530 N.E. Glen Oak Avenue, Peoria, IL 61637. Phone: (309) 655-2553. Fax: (309) 655-2602. E-mail: James.R.Hubler@osfhealthcare.org.
  • Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, 464 Congress Avenue, Suite 260, New Haven, CT 06519-1315. Phone: (203) 785-4710. E-mail: edward.monico@yale.edu