Failure to Follow Own Policies Buries HospitalAgain
Tennessee Supreme Court says hospital is directly liable for failure to enforce its emergency department policy that required all patients be seen by an emergency physician.
By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor; President Bitterman Health Law Consulting Group, Inc.
Barkes v. River Park Hospital
One long summer morning, J. Wayne Barkes, age 48 and a platoon sergeant in the Tennessee National Guard, tilled his garden and cleared brush with an axe and chain saw. He stopped to rest because his left arm and shoulder started hurting. When the pain increased instead of diminishing, his wife took him to the emergency department (ED) at River Park Hospital in McMinnville, TN.1
Mr. Barkes was triaged by a paramedic, an employee of the hospital, but not by one of the ED nurses. His vital signs showed a blood pressure of 130/70, pulse 100, and respirations 20. Thereafter, his medical screening examination was performed by a nurse practitioner (NP), not a physician, though the NP did discuss Mr. Barkes' presentation, symptoms, and diagnosis of "left forearm strain due to overuse" with the emergency physician (EP) on duty. The EP agreed with the diagnosis and treatment plan, then signed the discharge papers. However, Mr. Barkes was never actually seen or examined by a physicianan important fact ultimately determinative to the outcome of this lawsuit.1
The NP sent the patient home with instructions to rest the arm, apply ice, and take an over-the-counter analgesic for pain control. Two hours later Mr. Barkes collapsed dead in his bathroom from an acute myocardial infarction.
Mrs. Barkes subsequently sued the hospital for wrongful death.2 She also sued the NP and the EP, along with their employer PhyAmerica, the contract management group that staffed the hospital's ED. However, by the time of the trial, the wife had voluntarily dismissed her claim against the NP, the EP, and PhyAmerica because both PhyAmerica and its captive insurance company had entered into bankruptcy. Notwithstanding, the hospital continued to maintain comparative fault claims against the clinicians and the company.1
At trial, the jury found the hospital 100 percent at fault for the death of Mr. Barkes, yet it found absolutely no fault on the part of the paramedic, NP, or EP responsible for his examination and misdiagnosis.2
The hospital appealed this rather strange decision, and the Tennessee Court of Appeals rescinded the jury's award of $7,206,907 in damages.1,2 The court held that Tennessee law didn't recognize a theory of corporate liability under which the hospital could be found responsible for damages to a patient absent the jury finding vicarious liability for negligence by one of the treating health care providers.1 The wife appealed to the state supreme court.
Tennessee Supreme Court Holds Hospital Liable for Failing to Follow its Own Policies
The Tennessee Supreme Court noted, in an interesting twist, that Mrs. Barkes didn't claim the hospital was vicariously liable for the acts of its employee, the paramedic who triaged Mr. Barkes, or the acts of the NP or the EP. Instead, she a pressed a direct negligence action against the hospital for failure to exercise reasonable care in carrying out duties owed directly to its patients.
Specifically, Mrs. Barkes alleged that had Mr. Barkes been triaged by a nurse instead of the paramedic, and had he been examined by a physician instead of a NP, the warning signs of an impending heart attack would have been detected and treatment rendered that would have prevented his death.1 (The patient was obese, a heavy smoker, had known high cholesterol and a family history of heart disease, and was pale, nauseated, and diaphoretic; which apparently escaped elicitation or appreciation by the NP.)
River Park had a written policy in effect at the time of Mr. Barkes' presentation that stated:
"Any patient arriving at the Emergency Department will be seen by the emergency department nurse; triaged; and be seen by the appropriate physician." ... and "All patients presenting for treatment in the emergency room are assessed by an emergency physician."1
The NP testified that she was wholly unaware of the hospital's policy that required every patient presenting to the ED be seen by a physician. The EP working in the ED at the time of Mr. Barkes' treatment (who signed the discharge papers) also testified she had no knowledge of the hospital policy requiring a physician to see and examine all ED patients.1
The plaintiff's experts had a field day at the original trial coupling the hospital's written policy with the "deer-in-the-headlights" lack of knowledge of its existence by the staff actually responsible for carrying out the mandates of the policy.
The Supreme Court, after reviewing its past precedents, held that the hospital had a duty to "exercise that degree of care, skill, and diligence used by hospitals generally in that community."3,4 Furthermore, the court stated, the duty of reasonable care a hospital owes directly to its patients is independent of any liability based on the hospital's employees or agents.1
Therefore, the Tennessee Supreme Court overruled the appeals court and reinstated the jury verdict, stating that Tennessee law does permit a cause of action against a hospital for failure to enforce its policies and procedures in patient care. It determined, based on the material evidence presented at trial, that "the jury was entitled to draw the reasonable conclusion that the hospital's failure to inform the emergency room health care providers of its policies and its failure to effectively implement a system of oversight and enforcement of its policies was negligence that caused Mr. Barkes' death."1
The chief messages of this case are two-fold. First, hospitals must understand that they create self-imposed own standards of care through their written policies, and they will be held to those standards even if "higher" or not required by the prevailing community or professional standards of care. Second, if a hospital adopts a policy or procedure, it had better inform and educate the staff who will carry out the policy and ensure that they can meet its "standards" on a universally consistent basis. Otherwise, the hospital sets itself up for litigation under the theory of "failure to follow its own rules." The usual plaintiff's attorney argument goes something like this: "Mr. Hospital, you thought the procedures you should provide were so important to patient care and patient safety that you codified them into written policies, yet you didn't think it prudent or necessary to inform the staff, educate them on their responsibilities, and ensure that those critical procedures were actually carried out?"
Note that River Park Hospital's policy required all patients to be seen by an emergency physician. This policy not only meant the NP couldn't see a patient on her own in River Park's ED, despite having an independent license under state law that would allow her to do so and approval of the medical staff credentials committee (note that PAs, however, do not have an independent license and operate only under the license of their supervising physician); it also meant that no other credentialed member of the medical staff could examine and treat one of his or her patients in the ED, without the EP also seeing the patient.
Which providers are allowed to see and treat patients in the hospital's ED actually is controlled by federal law and regulations under EMTALA.5,6 The process also is better stated as who is considered "qualified medical personnel" to provide the EMTALA-mandated "medical screening examination" (MSE) on behalf of the hospital.7 The federal government requires the hospital's governing body to formally designate, in writing, who is a qualified medical person to perform medical screening on behalf of the hospital. The government's intent is to hold the hospital's governing body "properly accountable for this function." The regulations also specifically state that the hospital cannot allow the medical director of its ED to designate who is qualified to perform screening examinations on behalf of the hospital.6,7
The hospital's designation of who is qualified to perform an MSE also must meet the requirements of other Medicare regulations concerning emergency services personnel and direction, specifically 42 CFR §482.55.8 These conditions require that the organization, direction, and personnel of emergency services be directed and supervised by a qualified member of the medical staff and that the medical care be a continual responsibility of the medical staff. Additionally, the screening processes and personnel must be "in accordance with acceptable standards of practice."7
The Joint Commission on Accreditation of Healthcare Organizations also has set standards related to the MSE, stating that a "licensed independent practitioner with appropriate clinical privileges" must be responsible for determining the degree of assessment and care of all patients presenting to the hospital for emergency care.9
It's certainly not illegal to use mid-level providers, such as the NP at River Park or PAs as is done in many hospitals across the country, but their use must be sanctioned, in writing, by the hospital and its governing body, and their scope of practice in the ED must conform to their training, certifications, and the limitations imposed by state laws, the medical staff by-laws, or by the hospital or emergency physician group.
One can't help but wonder why the plaintiffs didn't sue the hospital under EMTALA. The hospital clearly violated the statute by failing to follow its policy. Who could triage the patient (nurse or paramedic) and who could examine its ED patients constitutes part of its medical screening process, and thus failure to have the nurse triage the patient or an EP conduct the MSE violated the hospital's screening policy.
Plaintiffs increasingly are using these failure to follow policy claims or "failure to follow your own rules" to sue hospitals for the actions of its physicians under both EMTALA and state malpractice laws.10 (Which, incidentally, is another way to sue the hospital when its EPs or on-call physicians have no or inadequate malpractice insurance.) For example, in Scruggs v. Danville Regional Medical Center, the plaintiff successfully sued the hospital for failing to follow its policy requiring the triage nurse to reassess all triaged ED patients in the waiting room every 2 hours, after the patient languished unexamined for 11 hours.11,12 In Bode v. Parkview Health System, the plaintiffs were allowed to sue the hospital for its failure to take a child's blood pressure at triage or repeat his vital signs before discharge, both of which were required under the hospital's written ED medical screening policy.13
A classic example of a hospital's liability under EMTALA for failure to follow its own policies is the St. Joseph's Medical Center case out of California.14 The Office of Inspector General fined the hospital $50,000 for failing to appropriately triage an elderly patient who presented with a swollen tongue and trouble breathing. The hospital's policy required all nurses conducting triage in its ED to have worked at least 6 months in an ED and to have gone through qualifying triage training. The nurse who triaged the patient had neither the requisite experience nor the required formal training, and the judge in the case determined the nurse's outright callousness and grossly negligent care lead to the patient's death.14
The obvious implication of the St. Joseph's decision is that if the hospital had a qualified nurse triage the patient, then the care and medical decision-making would have been better and saved the patient's lifealong the same lines as Mrs. Barkes' arguing that had the hospital had a nurse and EP care for her husband instead of the "unqualified" (at least by policy) paramedic and NP, her husband would still be alive.
Hospitals continue to buy themselves litigation and government scrutiny by boxing themselves through their own written policies and procedures. Does your hospital have a stack of binders sitting on the back shelves in the ED that govern the care provided in your ED? Has anyone reviewed those ED policies and procedures to determine if they contain pitfalls or they set expectations that the hospital will not be able to meet? Whoever reviews the policies must have sharp knowledge of the medical and legal implications under state malpractice law and federal EMTALA law, as well as a functional understanding of today's practice of emergency medicine and the interplay of how the law applies to the various medical scenarios or issues of the ED.
The vagaries of hospital-based emergency care make the practice difficult and a high-risk environment all by themselves; there's no need for a hospital to create additional liability for itself and its physicians through feeble drafting and implementation of its own polices.
1. Barkes v. River Park Hosp., Inc., No. M2006-01214-SC-R11-CV (Tenn. Oct. 20, 2010).
2. Tennessee Jury Verdict Reporter. 2006;(3)3:1-2.
3. Citing Thompson v. Methodist Hosp., 367 S.W.2d 134 (Tenn. 1962) (quoting 41 C.J.S. Hospitals § 8).
4. See James v. Turner, 201 S.W.2d 691, 694 (Tenn. 1941).
5. 42 USC 1395dd(a) – EMTALA's Medical Screening Examination requirement.
6. CMS Regulations at 42 CFR §489.24(a)(1)(i).
7. CMS State Operations Manual. Appendix VInterpretive GuidelinesResponsibilities of Medicare Participating Hospitals in Emergency Cases. Available at www.cms.hhs.gov/manuals/Downloads/som107ap_v_emerg.pdf. Accessed Jan. 3, 2011.
8. 42 CFR §482.55Medicare Condition of Participation: Emergency Services.
9. JCAHO Accreditation Manual.
10. E.g., Jilek v. Stockson et al., __ N.W.2d __, Mich. Ct. App. No. 289488 (July 29, 2010) (appeal filed, Mich. No. 141727, September 9, 2010). See also Bitterman RA. Policies and Guidelines Bury Hospitals and Physicians. ED Legal Letter 2010;21:109-112.
11. Scruggs v. Danville Reg'l Med. Ctr., No. 4:08CV00005 (W.D. Va. Sept. 5, 2008).
12. Bitterman RA. Overcrowded Emergency Department Leads to Lawsuit over EMTALA. ED Legal Letter 2008;19:133-136.
13. Bode v. Parkview Health Sys., No. 1:07-CV-324 (N.D. Ind. Mar. 23, 2009).
14. St. Joseph's Medical Center v. OIG, Departmental Appeals Bd., Civil Remedies Div., Dec. No. CR1895, 1/30/09.