Lawsuit over lack of call coverage raises new concerns about liability

Experts recommend a 'better-safe-than-sorry' approach

It probably was inevitable, given the call coverage crisis in this country. Now that it has happened, emergency medicine experts are sitting up and taking notice: A hospital is being sued over the failure to provide adequate specialist coverage for an ED patient.

Mary Stone, 52, recently was taken to the ED at Jupiter Medical Center in Palm Beach County, FL, after suffering a stroke. It took 11 hours to find a neurosurgeon, and it was at Shands University of Florida Hospital in Gainesville, 260 miles away. Stone was transferred and had surgery, but died 10 days later. Her husband has a lawsuit pending against Jupiter Medical Center and is claiming his wife would be alive had a neurosurgeon operated sooner.

While the defendant in this case is the hospital, such cases could represent a new, but limited, area of liability for ED managers. "The hospital is responsible for providing on-call coverage," notes Michael Frank, MD, JD, general counsel for Emergency Medicine Physicians, a physicians' group based in Canton, OH. Frank adds, however, that in those situations in which the ED manager is responsible for call coverage, that information could come out in discovery.

"Since the ED manager is an employee of the hospital, there's not much benefit to naming them, since it's the hospital that has the deep pockets," Frank adds. "But if the ED manager is tasked with the responsibility of filling the on-call coverage list and a specialist is available but the manager failed to obtain their services, the hospital would have some complaint about the performance of the ED manager."

Anyone can sue

There could, Frank concedes, be more similar cases in the future.

"There's a 'colorable theory' plaintiffs use that says the defendant has an obligation to foresee the problems that are likely to be happening and should, therefore, take reasonable steps to be staffed and equipped to deal with those problems," he explains. "If there is a shortage of subspecialists but the hospital had not bothered to sign up a neurosurgeon for on-call duty, in theory they may be negligent."

In addition, says Frank, delays in call coverage might expose the ED manager to problems with governmental agencies. For example, he says, while the Emergency Medical Treatment and Labor Act (EMTALA) doesn't require that you have someone on call for every conceivable medical condition, an ED manager who doesn't have a particular specialist on call might run afoul of Centers for Medicare & Medicaid Services (CMS) regulations.

"Nothing requires a hospital to have every specialty covered," says Frank. "In the final rules, CMS clarified the fact that a hospital only has to have on-call specialties that fit the needs of the patients and medical staffs."

However, he adds, when CMS officials clarified the rules, they said that you do have to have in place policies and procedures for addressing the needs of patients when that coverage is not available. "When you do not have such policies and procedures in place and there are delays in treatment because of that, then you will have some liability to CMS," says Frank.

Managers must prepare

Because of the possibility of such a case arising, ED managers should take care that they are as well protected as possible, say experts.

"In a case like [the one in Florida], if you don't practice neurosurgery in that hospital, you should be immune," notes Paul Kivela, an attending physician at Queen of the Valley Hospital, Napa, CA, and past president of the California chapter of the American College of Emergency Physicians. "If you do practice limited neurosurgery, the issue is, are you putting yourself out there [to the public] to provide those services?"

ED managers should check to ensure neurosurgeons on staff are properly credentialed. If your neurosurgeons do not have the ability to do a procedure, Kivela advises, document it. He adds that in protecting themselves and their departments, ED managers should think "outside the box." For example, he suggests, "Post on the outside of your ED what services you do and do not have available."

Gregory L. Henry, MD, FACEP, risk management consultant for the Emergency Physicians Medical Group, Ann Arbor, MI, agrees that intimate knowledge of your department's capabilities is critical. "It's not enough to have a call list. You need to know exactly what it will do," he advises. Some surgeons, for example, will not handle burn cases, he notes, and those patients are better off being sent to a burn unit.

If your ED faces such a situation — for example, an orthopedist who will not treat children younger than 12 — Henry says you should state that fact to the family up front. "Say, 'This is why we have to transfer your child,'" he suggests. Don't pretend that you can treat them, Henry says. "You do not need the orthopod's OK to send the case," he says. "Just do it."

In fact, Henry reports, he saw a child just recently who had an elbow fracture. "Our orthopod didn't do kids who were that age, so we sent the patient to Children's Hospital at the University of Michigan," he says. That was the intelligent thing to do, Henry says. "It's better to have the patient cared for by people who provide that specialized care all the time," he says.

Kivela agrees. "EDs in most states classify themselves, for example, as a trauma center or not," he notes. In California, for instance, there are three designations: comprehensive, full-service, and standby, Kivela says. "If you are a standby facility, you really shouldn't guarantee anything more than a doc or maybe a nurse to triage the patient," he says.

In addition, cautions Henry, never promise to the patient or family what will be done at the other center. "Do not say you are sending the patient for an operation; say you are sending them for evaluation," Henry recommends. "The condition of the patient may change, or the other facility may do a new or different procedure."

What's more, he says, never guarantee an outcome. "Don't say, 'If we send them there they'll be fine,'" Henry warns.

To avoid any confusion at such times, says Henry, ED managers should have all of their transfer agreements in good order. "The worst thing you can be doing is going shopping," he says. "If you have a neurologist or a neuro-radiologist on staff, you need to know if they are available that day; there can't be any questions of 'maybe.'"

In addition, to avoid EMTALA violations, you must know who's on call, how to reach them and, if you can't, what your next steps should be, says Henry. "You should never be in a quandary about what to do with a particular case," he says. Have the essential disposition "airtight," Henry advises. "This should be true of any thing your hospital does not supply," he adds.

There's hope on the horizon in this area, says Kivela. "One of the things we argued for in California, unsuccessfully, is the possibility of having regional referral networks," he says. "But that's what's coming in the future."

Sources

For more information on ED managers' responsibilities concerning call panels, contact:

  • Michael Frank, MD, JD, General Counsel, Emergency Medicine Physicians, 4535 Dressler Road, Canton, OH 44718. Phone: (330) 493-4443.
  • Gregory L. Henry, MD, FACEP, Risk Management Consultant, Emergency Physicians Medical Group, 1850 Washtenaw Ave., Ann Arbor MI 48104. Phone: (734) 995-3764. Fax: (734) 995-2913. E-mail: gamhenry@aol.com.
  • Paul Kivela, MD, MBA, FACEP, Attending Physician, Queen of the Valley Hospital, 1370 Trancas No. 336, Napa, CA 94558. Phone: (707) 207-0477. E-mail: pkivela@myifp.com.