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Your ED Patient Should Have Been Transferred, But Wasn't?
Document Your Reasoning
If there was the potential for a better outcome if a patient was transferred, and the patient was harmed and can show that you breached the standard of care, a successful lawsuit could result, says Michael Blaivas, MD, RDMS, professor of emergency medicine in the Department of Emergency Medicine at Northside Hospital Forsyth in Cumming, GA.
Plaintiff's attorneys are well aware of Emergency Medical Treatment and Labor Act requirements and the need to transfer patients for a higher level of care, he says. "The public is also aware that transfers occur all the time, and feel it can be done without any delay," says Blaivas.
If a patient does not get surgical intervention, critical care, or cardiac catheterization in a timely manner due to failure to transfer or delay of transfer that cannot be explained by issues beyond the control of the EPs, says Blaivas, then a lawsuit can occur and be successful.
"There are cases that may be looked at closely, but while harm occurred, there was no chance for improved outcome," adds Blaivas. He gives the example of the discovery of a thoracic aortic dissection with a pericardial effusion and root involvement. "If you transfer the patient and it takes two hours to get them to the OR at the receiving facility and they die, there was little that could have been done better," he explains.
In fact, says Blaivas, "the mortality rate for these patients is so high that even if the patient presented to the receiving hospital initially, was immediately diagnosed, and went to the OR right away, they still may not have done better."
Matthew Rice, MD, JD, FACEP, former senior vice president and chief medical officer at Northwest Emergency Physicians of TEAMHealth in Federal Way, WA, says that a patient could have a successful lawsuit if the appropriate legal criteria are met and the transfer is possible and reasonable.
The patient's personal desire for transfer, a poor outcome because of failure to transfer, and knowledge by the ED provider of the need to transfer the patient for appropriate services are factors that increase the likelihood of a successful lawsuit, he says.
Rice gives the example of a chest pain patient who requires emergency cardiac catheterization, but instead is admitted to cardiology for catheterization the following day because the hospital doesn't have a 24-hour catheterization lab.
a.other example involves referral to a medical facility or medical provider that meets "economic concerns" but is not the highest standard of care, says Rice. "Transferring a patient to a more distant facility for time-dependent treatment because of 'insurance,' instead of a closer medical facility with equivalent resources, has risk if there is a poor outcome," he warns.
To reduce risks, Rice says to document reasons for "keeping" or transferring the patient, with risks and benefits of each clearly outlined and explained to the patient for his or her consent.
"Knowingly keeping a patient at the 'home' hospital, when the ED provider knows that the accepting physician is not the appropriate provider for the patient's problem, and there is a bad outcome with the patient" can result in a successful lawsuit, says Rice.
There is a huge range of capabilities for different EDs across the country, notes Emory Petrack, MD, FAAP, FACEP, a medical-legal consultant and principle of Shaker Heights, OH-based Petrack Consulting. "Examples range from large tertiary Level 1 trauma centers to small community departments with low volumes," he adds. "The key is to be aware of your department's resources and limitations."
Petrack says that a good example involves pediatric emergency care. A common medical legal risk is failing to transfer and admit an infant or child who has a disease process beyond the resources of a community ED, he says.
"If something significant is just 'not right,' such as vital signs that are significantly abnormal with an otherwise well-appearing child, it is prudent to arrange admission, at least for observation," says Petrack. "If the hospital does not have pediatric inpatient beds, the child should be transferred to an appropriate facility."
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