ED delays 'will come back to bite' hospitals

Patient death ruled homicide

The death of a patient who waited nearly two hours in the waiting area of an Illinois hospital emergency department (ED) was ruled a homicide by a Lake County coroner's jury, and the incident likely would be viewed as a violation.

of the Emergency Medical Treatment and Labor Act (EMTALA), according to Stephen A. Frew, JD, a risk management specialist and web site publisher (www.medlaw.com).

The jury's Sept. 14 verdict stated that although the cause of death was a heart attack, the woman also died "as a result of gross deviations from the standard of care that a reasonable person would have exercised in this situation."

The woman's daughter, who was with her mother in the ED waiting room of Vista Medical Center East in Waukegan, IL, had previously complained that her mother had waited too long to get care.

A deputy coroner testified at the hearing that he subpoenaed hospital records after noticing discrepancies in the hospital's version of events after the woman arrived at the ED at 10:15 p.m. July 28.

The daughter told investigators her mother, Beatrice Vance, had complained of chest pains and the two drove to the hospital, about a mile north of their home. According to hospital records, the woman was seen by a triage nurse at 10:28 p.m., and complained of nausea, shortness of breath, and chest pain at a level she rated as "10" on a pain scale. The triage nurse reportedly classified the patient's condition as "semi-emergent."

The daughter said she twice asked nurses when her mother would see a doctor and first was told she was next on the list to be called, and the second time was told that two ambulances had just arrived with more urgent cases.

At 12:25 a.m., an ED nurse went to the waiting room and called for the woman but got no response, the jury was told. The woman was leaning on her side on a waiting room seat, unconscious and without a pulse.

Physicians rushed her into the treatment area and administered CPR, the jury was told, and at 12:55 a.m. they detected a weak pulse. Ten minutes later it stopped and they restarted CPR. The woman was pronounced dead at 2 a.m. An autopsy showed she died of a heart attack caused by blockage of an artery in her heart.

The jury was advised of standards from the American Heart Association that showed the woman's symptoms fit the description of a heart attack "pretty much to a T."

The jury also considered medical guidelines that recommend patients apparently suffering from a heart attack should be put on cardiac monitoring immediately and have an electrocardiogram done within 10 minutes of arrival at the hospital.

Neither measure was taken while Vance was waiting, according to the coroner. He also testified that professional organizations recommend that blood thinners and other medications be administered within three hours of arrival, but in this case, no medication was given until after the heart stopped.

In his comments on the case, Frew noted that the coroner's jury went out of their way to send a message regarding ED delays and indifference to patient care to this hospital and all hospitals.

"It appears that the public is saying that ED delays are going to come back to bite hospitals," he suggests.

The following factors make it likely the incident would be considered as a potential EMTALA violation, Frew says.

1. In all probability, the patient would be classified in hospital protocols as the type who would be taken back to the treatment area immediately. Therefore, a triage error likely occurred, which in and of itself is typically cited.

2. Assuming, however, that the triage protocol actually permitted this management of the patient, the Centers for Medicare & Medicaid Services (CMS) is likely to cite the protocol as a violation of EMTALA.

3. Even if CMS could be convinced that the patient was properly sent to the waiting area, the reassessment requirements of EMTALA clearly indicate that a delay of two hours without reassessing a chest pain patient would not be likely to escape citation.

Pregnant woman has potential EMTALA claim

A pregnant woman who came to an emergency department (ED) and was told to wait while staff determined if an on-call obstetrician would see her has a potential claim against an Alabama hospital under EMTALA, according to another recent court decision.

Ginger Henderson alleges that she was 38 weeks pregnant when she was involved in an auto accident and began to experience contractions. The opinion by the U.S. District Court for the Middle District of Alabama states that she contacted her personal physician, who advised her to go to the nearest hospital ED.

The complaint alleges that Henderson presented to a clerk at the ED at Medical Center Enterprise (MCE) in Enterprise, AL, and said that she was pregnant, had been in an auto accident, and was experiencing contractions two minutes apart. She was directed to the waiting area, the complaint continues, and later was summoned back to the desk and told she would have to wait while staff contacted the on-call obstetrician and determined whether he would see her, since she was not a regular OB patient at the hospital.

The woman left and sought treatment elsewhere.

The court found that the hospital policy was that OB patients over 20 weeks' estimated gestation should be evaluated by the ED physician prior to being sent to the OB area. There is no indication of triage or a physician medical screening exam, according to the opinion.

"A jury could find that Mrs. Henderson was treated differently from other patients presenting with the same symptoms because her obstetrician did not practice at MCE," the judge ruled. "This difference in treatment not based upon a difference in symptoms would violate MCE's obligation under EMTALA to provide appropriate medical screening."

The court also found that "a jury could conclude that having to wait for the OB physician on call to decide whether or not Mrs. Henderson could be treated unreasonably delayed screening or treatment."

The hospital maintained that the patient's departure was a voluntary withdrawal of her request for treatment. The court ruled, however, it was for the jury to decide whether the departure was voluntary or induced by the hospital's actions, and whether the hospital complied with EMTALA requirements for obtaining a signed informed consent to refuse care before Henderson's departure.

It is not clear whether the hospital was inspected by CMS over the incident or whether it had been cited for EMTALA violations, Frew points out in his analysis of the case. "The allegations in the complaint would appear to be of the level and type that would be cited if CMS found the facts matched Henderson's version," he adds.

Although it appears that Henderson did not suffer physical harm, the court ruled that emotional distress could support a verdict under Alabama law.

EMTALA law suits can only be brought by a patient or another hospital that has suffered a legal loss or harm from a violation, Frew notes, but CMS citations may be issued without any allegation that any harm resulted from a violation.

The next step is for the case to go through pre-trial procedures, he says, and for a jury to decide whether Henderson can prove the facts as alleged, and what damages, if any, will be awarded.