Too-stringent ED Policy Can Make Staff Appear Negligent

Leave discretion, 'wiggle room'

Does your ED have policies that leave no room for nursing judgment, and instead, require specific timeframes for procedures such as re-assessments and checking of vital signs? "These are troublesome in lawsuits," says Linda M. Stimmel, JD, a partner at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas, TX. "I have never seen a perfect chart, graphic record, or flow sheet in almost 20 years of defending health care providers."

If an ED policy states, for example, "vitals every 15 minutes Q 1 hour," a plaintiff's attorney need only look closely at the ED policy and compare it with the patient's chart, says Stimmel. Then at trial, the attorney will argue, "This nurse did not even follow the hospital's own policies when caring for the patient," she says.

"I have seen many charts where vitals were taken, just not to the exact specific timing of a policy," says Stimmel. "We can argue that it did not cause any harm to the plaintiff. But if in trial, they have blow-ups of a chart with 10 or 20 entries that do not meet the specifics of a policy, the jury begins to believe the ED is staffed with careless, negligent staff."

Stimmel adds that she has seen very detailed, specific policies that were not followed used to attack a hospital or administration at trial. "The plaintiff's counsel will argue lack of supervision, training, and education of the ED staff," she says. "These are all attacks that we can avoid, with carefully written ED policies that allow discretion and 'wiggle room' for the ED staff."

John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, says that it is important to "align the true life in the trenches with the administrative view and perfect-world policies."

Burton says that NPO (nothing by mouth) status for sedation patients is "an interesting example, as we ignore fasting guidelines all the time given that they have little to no relevance in our setting."

The Center for Medicare & Medicaid Services requires hospitals to have these and many other policies in place, notes Burton, but "the folks creating the institutional policies may have no clue as to what actually happens in the trenches."

Policies Aren't Standard of Care

Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing EP, says that he has often argued, generally successfully, that internal rules at a hospital do not define the standard of care.

"Standard of care is ultimately defined by a jury, but it is defined by comparing what is done in a particular situation with what a reasonable prudent provider would do under similar circumstances," says McMenamin. "I could, in theory, create an extraordinarily exacting standard for myself by developing internal rules that are very, very strict."

As a private individual, or a private institution, you cannot change what the law provides, says McMenamin. "The comparison to make is not one between your conduct and your own internal documents. Rather, the proper comparison is between your conduct and that of others in similar circumstances," he explains. "It would be theoretically possible for me to comply with the standard of care, and yet fall short of what my own policies and procedures say."

On the other hand, an ED can't develop documents setting out a policy that allows nurses or physicians to fall below the standard of care, notes McMenamin. "I can't very well ask a court to agree that because I have complied with my own internal rules, that I'm off the hook legally, and have no potential liability exposure," he explains.

Your own ED internal policies and procedures aren't designed to define the standard of care, says McMenamin. "They should do nothing more, and nothing less, than govern conduct within the walls of the institution, and should not be used for other purposes," he says.

For this reason, McMenamin says there is a good argument that from a legal standpoint ED policies are irrelevant, since they can't properly be used to determine what the standard requires.

While many courts do accept this argument, McMenamin cautions that many do not. "Depending on the state, there is a distinct possibility that, try as you might, and despite invoking QI statutes and so forth, you may be required in discovery to turn over your policies and procedures, even though you don't want to," he warns.

'Deplorable Development'

McMenamin says that ED policies should not impose unreasonably high standards. "When you write these things, write them carefully," he says. "Somebody somewhere out there is going to try to discover your documents, and might try to hit you over the head with them. If you have written them in such a way that no one could possibly achieve what you have set out, you are headed in the wrong direction."

This is especially important if you are located in a jurisdiction that doesn't carefully protect these kind of documents, adds McMenamin. "There has been some erosion of the law in my state, and that is true in other states as well. I think it's a deplorable development in the law," he says. "But given that some judges are now more willing than they used to be to force defendants to turn over documents such as these, I usually advise against being unreasonably exacting or needlessly specific."

Years ago, McMenamin defended a hospital that had a policy stating that there was to be 1:1 nursing care in the intensive care unit. "They didn't have it, and nobody in the state had it, because nurses just weren't available," he says.

McMenamin was able to keep the document from being discovered. "The courts were more careful to prevent misuse of these documents in those days," he adds. "The document never saw the light of day, and I never had to worry about what it said."

After the case was over, though, McMenamin informed hospital administrators that because the court agreed with the reasoning that documents were not relevant for the purpose of determining the standard of care, the hospital was able to "dodge a bullet."

"But if some judge someday forces me to turn over this document or one like it, then you are stuck with the fact that you yourself wrote this," he told the administrator. "Nobody forced you to write this. Don't put down in writing some sort of directive that is substantially impossible to comply with."

McMenamin advises against writing "unrealistic words" that could be used to suggest an obligation exceeding that which really does prevail under law.

"If you had a policy somewhere that a patient has to be out of the ED within 15 minutes of the decision to admit, it's hard to imagine that any hospital would be able to comply with that 100% of the time," McMenamin says. "In attempting to define what the responsibilities of the parties are, be realistic about it. Stay cognizant of whatever limitations are imposed by circumstances."