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Does proving an ED was crowded help or hurt in a lawsuit?
Finger-pointing can make defense more difficult
Some EDs have adopted the practice of documenting overcrowding, either by flagging patient charts or electronically recording the information with software, to pinpoint exactly how busy—and possibly, how understaffed—the department was on a given time and day. But is this going to help or hurt the ED physician in the event of a malpractice lawsuit?
The answer may depend on how unusual the situation is. "If there was an extreme surge in patients, such as after an explosion, and the hospital had a reasonable multicasualty incident plan and it was activated appropriately, then crowding would be a good defense," says Robert Shesser, MD, professor and chair of the department of emergency medicine at George Washington University. "If it was just an average busy day, then probably not."
As a general concept, it is typically not a good idea for the ED physician to blame a busy ED or overcrowding for a less-than-ideal outcome, according to Matthew Rice, MD, JD, FACEP, an ED physician with Northwest Emergency Physicians of TEAMHealth in Federal Way, WA.
Acknowledging an issue that makes the hospital or ED physician appear to have fallen below the standard of care will likely make it easier for the plaintiff's attorney to show that a breach of duty occurred, Rice explains.
Although it is often tempting to point a finger at a situation that made care difficult, this is probably not the best tactic to use in litigation proceedings. "Doing such often makes the defense of a case difficult for all involved," says Rice. "A jury is often not sympathetic to a patient's inability to receive the best of care."
Even if it might be helpful to an individual provider's case in pointing out real or perceived deficiencies within the system, such blame would only assist in the plaintiff's claims against the hospital or others, notes Rice.
"This may well weaken the defense by others, and most certainly would damage the relationship between the ED physician and the hospital," says Rice. A better approach, he says, would be to acknowledge that oftentimes ED systems are stressed, but there are procedures in place to prioritize care and find the best care for all patients in a timely manner.
Documentation of severe overcrowding "might simply be viewed as an attempt to shift liability from the ED physician to the hospital and or medical director for failure to have adequate plans and policies in place to handle surge," says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT.
"Documentation of severe overcrowding might benefit ED physicians if an altered standard of care is accepted during times of severe overcrowding," says Monico. "To date, this has not been the case."
A jury's reaction to evidence showing that the ED was understaffed might depend "on the scenario and the skill of the attorneys involved," says Monico.
"At this time, I doubt damages would be mitigated by a showing of overcrowding. Liability shifting or simply serving to identify more defendants might be the more realistic result," says Monico. "Plaintiff attorneys typically aren't interested in where the fault lies, as long as it lies with someone."
What should you document?
At rare times, such as a mass casualty incident, it might be useful to document an unusual situation when the ED is overwhelmed, advises Rice. "In those circumstances, it would be important to document what actions were taken to enhance care and resources with the increased demand," he says. This way, if there is subsequent litigation, you'll have evidence of recognition of the crisis and an appropriate response to the event.
More important, though, is to preplan for the high-volume situations. "Have a plan in place to assure that patients with the greatest problems are provided the right care," says Rice.
If you work in a system that is unresponsive to critical needs for staffing, with a lack of focus on patient care and safety, this must be addressed, says Rice.
"In an unsafe environment, both the provider and the system will have difficulty defending poor outcomes when resources are below reasonable standards for whatever reason, no matter who or what is blamed," says Rice.
James Hubler, MD, JD, assistant clinical professor of emergency medicine at the University of Illinois College of Medicine at Peoria, says that in most of the cases he has seen involving alleged delay in treatment, and even ordinary negligence, the issue of how crowded the ED was on the day or night in question was raised.
"Obviously, jurors are more sympathetic toward a physician for having to multitask on numerous sick patients at one time," he says.
Hubler notes that all ED patients are logged in, to comply with Emergency Medical Treatment and Active Labor Act (EMTALA) requirements. "If years later, the capacity of the ED is in question, it can be verified by using the log book and pulling the records," he says.
If an ED physician is just starting a shift and encounters an emergent patient who was mistriaged as non-urgent, it may be of value to proactively document that there were long waits in the waiting room, adds Hubler.
"If the shift has just started, I would document this information as well. It will help protect the physician, but not the hospital," says Hubler.
However, documenting that the ED was overcrowded may be of detriment if there has been no attempt to remedy the situation. Hubler notes that the plaintiff's attorney may ask: "Why didn't the physician call in additional physicians? Why didn't the ED go on bypass? Why weren't additional nurses called in?"
Crowding could be a defensible argument
According to Jesse M. Pines, MD, MBA, MSCE, assistant professor of emergency medicine and epidemiology at the Hospital of the University of Pennsylvania in Philadelphia, whether crowding should be documented "can be difficult to sort out in hindsight, but I think it is very important legally to the emergency physician." Crowding, he notes, is clearly associated with poorer outcomes and quality of care.1,2
And since the major cause of crowding is caused by the practice of boarding admitted patients in the ED, and this is out of the control of the individual emergency physician, attributing a particular error or poor outcome at least in part to the crowded state of the ED "may actually be a defensible argument," says Pines. "Personally, I have not seen cases where this has been used. But the literature on the topic is relatively recent. We may see cases in the future where a 'too crowded' defense is used."
However, Pines notes that hospital lawyers represent the entire hospital. So while this documentation may protect one party—the emergency physician—it could leave the hospital in a worse legal position. "This is particularly true in the era where the conventional wisdom is that hospitals are in part to blame for their own crowded conditions in the ED," he says. "What it may do is direct anger away from the emergency physician and at the hospital."
Pines adds that there are several peer-reviewed papers that have associated crowding with poorer quality care, including pneumonia, pain control, and cardiac care.
"Certainly, in these cases, if there is a bad outcome, lawyers may point to the literature to help justify what may have happened," says Pines.
Pines says that his conclusion is that documenting severe ED crowding "can't hurt, especially if there is a critically ill patient or a poor outcome that occurs."
"But the truth is that when patients are recognized as critically ill, resources are typically directed towards them regardless of how crowded it is," says Pines. "The problem comes for other patients who are there in the same ED with a critically ill patient."
If resources are insufficient to care for both patients—if, for example, a trauma patient pulls resources from a patient with acute coronary syndrome—there is evidence to show that outcomes can be worse in the acute coronary syndrome patient.
"So, it is not only important to document the crowded state, but also that resources were directed to another, more critically ill patient," says Pines.
1. Pines JM, Hollander JE. Association between cardiovascular complications and ED crowding. Presented at the American College of Emergency Physicians 2007 Scientific Assembly. Seattle; October 2007.
2. Richardson DB. Increase in patient mortality at 10 days associated with emergency department overcrowding. Med J Aust 2006;184:213-216.
• James R. Hubler, MD, JD, Assistant Clinical Professor of Emergency Medicine at University of Illinois College of Medicine at Peoria. E-mail: James.R.Hubler@osfhealthcare.org
• Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. E-mail: email@example.com
• Jesse M. Pines, MD, MBA, MCSE, Department of Emergency Medicine, University of Pennsylvania, Philadelphia. Phone: (215) 662-4050. E-mail: Jesse.Pines@uphs.upenn.edu.
• Matthew Rice, MD, JD, FACEP, Northwest Emergency Physicians of TEAMHealth, Federal Way, WA 98003. Phone: (253) 838-6180, ext. 2118. E-mail: Matt_Rice@teamhealth.com
• Robert Shesser, MD, Professor and Chair, Department of Emergency Medicine, George Washington University Medical Center, Washington, DC 20037. Phone: (202) 741-2911. E-mail: firstname.lastname@example.org.