Should ED Be Held to ICU Standard of Care?

One legal question is what standard of care the ED would be held to in the event of a lawsuit involving an admitted boarded patient's bad outcome. "We cannot meet the ICU standard of care, not because we don't want to, but because we do not have the resources. We are an ED. We are not here for the people who are going to be here for the next three days. We are here for the next urgent patient who comes in," says Frank Peacock, MD, vice chief of emergency medicine at The Cleveland (OH) Clinic Foundation.

EDs typically lack equipment and the ability to perform invasive or noninvasive testing. "It is folly to think that the ED provides anything like the standard of care of any unit. It is absurd for anyone to expect that the ED would provide that level of care," says Peacock. "That's why I have a 60-bed ED in a 1,460-bed hospital."

For this reason, Peacock believes the ED legally would be held to the standard of care for the ED, not an ICU. "But the next question is, 'So why didn't they have an internal medicine doctor come down from upstairs?' And that's a difficult one for me to answer," says Peacock. "You are now in the position of having to throw the hospital—your employer—under the bus."

In this scenario, no one wins. "The patient is harmed, the ED physician is left holding the bag, and the hospital gets to join him," says Peacock. "We take care of emergencies—we are not chronic care people. The crises should take priority and because they do, chronic care patients get ignored. That's why it's a bad place to put a chronic care patient, unless you want to put a whole lot more staff down in the ER, and a whole lot more beds."

Plaintiff Argues Otherwise

A plaintiff's attorney presumably would argue that the patient was admitted to an ICU, precisely because ICUs are equipped to provide services that you can't get on an ordinary floor, much less the ED. "They will argue that the fact that you chose to house this patient in the ED is your business, but he was entitled to ICU carethat is why he was admitted," says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician. "So the dopamine drip that would have been provided there, is what you should have done."

Although ED nursing staffing is based on census and history, these calculations don't take into account admitted patients. "You assign staff based on when you think you're going to need them, but all of that presupposes that an admission is no longer your baby—the admission is upstairs. If that's not true, then your calculations can't be right," says McMenamin.

If the ED averages 10 patients at a time, which is the number that two nurses can handle, those same two nurses presumably won't be able to handle 15 or 20 patients. "If you had twice as many patients and didn't increase the number of nurses, there may be a host of good reasons for that. But I can easily see a plaintiffs' attorney making hay out of it," says McMenamin.