Tempted to Point Finger at Other Doc?

Think Again. It Helps Only Plaintiff's Attorney

William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a practicing attorney, helped an ED physician defend a case involving a patient who died after being boarded in the ED for more than 5 hours. The ED physician stated that the admitting physician accepted responsibility for the patient. The admitting physician denied responsibility since the patient was not admitted to the floor.

"The resultant finger-pointing ended up in both the emergency physician and the admitting physician settling for a proportion of the liability," says Sullivan.

The admitting physician may claim that the ED physician didn't provide pertinent information. "When there is a bad outcome and the other doctor has not seen the patient, there will be all sorts of finger pointing," says Frank Peacock, MD, vice chief of emergency medicine at The Cleveland (OH) Clinic Foundation. "You can document your tail off, but it's still your problem. A better use of your time might be taking care of the patient, instead of writing a 14-page note."

Expect Discrepancies

The admitting physician physically may see the patient in the ED, but the patient stays in the department. In this scenario, says Peacock, "you are still the doctor standing next to the patient, so you still have liability. Now that the other doctor has seen the patient, they have joined you in the liability, unless that patient leaves your department."

Peacock notes that when a patient is transferred to another facility, the transferring physician is responsible until that patient arrives at the destination. That likely would hold true for transfers occurring within hospitals.

"If they live in my ER, even though the ICU [intensive care unit] doc has come down and seen them, I think it's shared culpability until they arrive at the ICU," says Peacock. "The reality is that I am there at the bedside. It would be patient abandonment to ignore them."

The bottom line is that ED physicians are assuming increased liability as a result of boarding. "We are left holding the bag for a patient who we do not have the expertise to care for," says Peacock. "If you go to a jury and say, 'We were really busy,' you get no sympathy for that. The system is broken, but you can't plead that to the jury. Even if the hospital was full and there was no place to put these people, the jury still feels like it's your fault."

When litigation occurs and different physicians are involved, the question often becomes what one person told the other. There may be discrepancies between what the admitting physician says the ED physician told them, and what the ED physician recalls stating.

"It's not at all uncommon to have the accepting physician say, 'If the ED physician had only told me this, then I would have responded differently, so it's not my fault. They didn't present the patient to me with the right information,'" says Matthew Rice, MD, JD, FACEP, former senior vice president and chief medical officer at Northwest Emergency Physicians of TEAMHealth in Federal Way, WA.

Avoid Warfare in Chart

Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician, says that the ED physician would be well advised to document conversations with consultants, such as "At 4:52, a conversation with Dr. Jones took place. We both agreed that patient X needs to be admitted to the service of Dr. Jones, third floor, East wing. Dr. Jones is writing admission orders and taking over care of the case."

The problem is that the patient remains in the ED. "By documenting the conversation, the ED doctor may well be better able to argue that now responsibility rests with Dr. Jones," says McMenamin. "But the plaintiffs' attorney is not going to sue just Dr. Jones. He or she will also sue the hospital and the emergency physician."

Each physician may engage in documentation that tries to shift responsibility to the other. "Soon we have warfare going on between the defendants, and the plaintiff is the winner," says McMenamin. "I hate to see this happen, and it can be avoided with a little care and forethought."

Although it is common for the ED physician to maintain responsibility for the patient while he or she is physically in the ED, "the trouble is that the ED doctor has other duties and can't be running an inpatient service," says McMenamin. Also, EDs lack sufficient nursing staff to provide what amounts to inpatient nursing services.

"Too often, ED physicians are needlessly exposed to liability because patients who need to be upstairs are simply being housed in the ED for lack of space someplace else," says McMenamin.