SPECIAL REPORT

Holding Orders: Increased Risk for Emergency Physicians?

By Jonathan D. Lawrence, MD, JD, FACEP, Contributing Editor, Emergency Physician St. Mary Medical Center, Long Beach, CA, Assistant Professor of Medicine, Department of Emergency Medicine, Harbor/UCLA Medical Center, Torrance

Controversy continues to swirl around the appropriateness of emergency physicians writing holding orders (or bridge orders, as they are sometimes called) for admitted patients. The two main professional organizations of emergency physicians have differing viewpoints. The American College of Emergency Physicians (ACEP), since 1986, has declared the practice to be inappropriate,1 while the American Academy of Emergency Medicine (AAEM) believes otherwise.2 If anything, the pressure on emergency physicians to write some kind of orders for care beyond the ED will increase as attempts mount to relieve ED boarding of admitted patients. How did we get here and what, if any, are the legal ramifications of writing (or refusing to write) holding orders?

Simply for historical reasons, writing orders of any kind for the continued care of a patient once he or she has left the emergency department has never been popular. In the early days of emergency medicine, when emergency physicians lacked respect from more established specialties, such a practice was frowned upon as appearing too much like "scut work," thus having the danger of placing emergency physicians in the position of glorified house officers. Even though such a rationale has, for the most part, been swept aside by time, many emergency physicians view the practice as an anathema, even if writing some orders may be to the patient's benefit.

In addition, most training programs don't prepare residents to write holding orders. Residencies are at big teaching hospitals where each service has abundant house staff. There is simply no need for emergency physicians to write orders once the decision has been made to admit the patient. Although most programs provide experience for their residents at community hospitals, where holding orders might be written, this experience is generally limited. When residents go out into the "real" world, they can find themselves unprepared if their practice situation calls for emergency physicians writing holding orders. In some cases, the viability of a group's contract with the hospital may depend on the good will generated by the courtesy of writing holding orders for the attending medical staff.

The hospital medical staff by-laws play a role in the holding order question. Virtually all such by-laws have provisions that govern how quickly an attending physician must physically be present in the hospital after a patient admission. Typically, such time limits are, on average, 1-2 hours for the ICU and 8-12 hours for a ward admission. Variations on these parameters are common. Thus, an emergency physician (EP) cannot, under the by-laws, demand that an attending come to the hospital. Commonly, in this scenario, the attending and EP will discuss the case and orders will be either dictated by the attending to the ED nurse or the floor nurse, or the EP will write holding orders to cover the time period until the attending comes to the hospital.

In recent years, the proliferation of hospitalists has changed the landscape somewhat. In larger hospitals, full-time hospitalists have eliminated the need for holding orders in many cases. In smaller hospitals, however, the hospitalist is often hired by an HMO or PPO and is responsible only for the plan's patients, may have to split his or her time between several hospitals, and may not be in the hospital 24 hours a day. Thus, the need for holding orders may persist.

Lost in all of this is an analysis of the legal liability involved when an emergency physician elects, or refuses to write, holding orders. ACEP's position is that holding orders appear to extend responsibility for the patient to the ward and beyond the ED, thus exposing the EP to legal liability should the patient deteriorate on the ward. AAEM, while discouraging the practice, finds it permissible. Both organizations long for a "bright line" noting where the responsibility of the EP ends and the responsibility of the admitting physician begins. Unfortunately, such a bright has never existed and nuanced "shades of gray" continue, especially now in the age of boarding admitted patients in the ED. The flip side of the coin is that an admitting physician may actually come to the ED and write orders. If the admitting physician then leaves and the patient is boarding, the EP can still be on the hook if the patient deteriorates in the ED. The question is; does it matter? Are EP's protecting themselves legally by not writing holding orders or is the reverse true? The author has had extensive discussions with multiple malpractice attorneys and none can recall a case in which liability hinged on the holding orders or lack thereof. This is not to say that such a case doesn't exist somewhere in the country (and the author welcomes feedback if one does), but they must be rare. Here are the reasons why.

1. If a patient has an "event" on the ward that leads to litigation, be assured the plaintiff's attorney will name everyone who cared for the patient. If the patient entered the hospital through the ED, that will include the EP. During the discovery process, plaintiff will find out the role of the EP in the care and treatment of the patient. Even assuming the treatment in the ED was up to the standard of care, there is no reason for a plaintiff attorney to dismiss the EP if the patient deteriorates on the ward, with or without orders from the attending physician. This is doubly true if the EP's treatment was not up to the standard of care (or if plaintiff finds an expert to say it wasn't), even if the EP didn't write holding orders. The plaintiff would like to have as many contributors to a settlement or award as possible.

2. The co-defendant attending physician can always question the quality of the work-up or the communication with the EP to explain why the dictated orders were insufficient. This is especially true if the admitting physician doesn't know the patient, such as a physician on-call for the patient's regular physician or a call panel physician for unassigned patients. Staff by-laws protect the admitting physician from demands that he or she come to the hospital immediately. Plaintiff attorneys love it when co-defendants point fingers at each other, but desperate defense attorneys have been known to play this game both to deflect criticism from their client and to have someone else share in the award to the plaintiff. Thus, the admitting physician can aver that he or she was not aware of a certain critical aspect of the patient's condition because the EP failed to mention it. The attending's reliance on the communication with the EP thus would keep the EP "on the hook."

3. The defendant EP's position can be defended as being in the best interests of the patient. Since the EP was the last physician to evaluate the patient, he or she is in the best position to know the patient's current condition and what is necessary in the immediate short term. Provided, again, that the ED evaluation met the standard of care, short-term holding orders provide care for the acute problem for which the patient came to the ED. Holdings orders based on a below-standard evaluation in the ED obviously cannot be defended, but in that case the EP has far more problems than the holding orders.

How to Minimize Liability for Admitted Patients, Whether Or Not Holding Orders Are Written.

1. Understand whether holding orders are written by the ED group you're about to join. If an EP is strongly opposed to the practice, and the group writes holding orders, look for employment elsewhere if you can't live with it.

2. Work with the medical staff to try to make the line as bright as possible between EP and attending responsibility for admitted patients. As part of these discussions, establish responsibility for boarded patients. A written or dictated line in the chart should try to mark the moment the "torch was passed" to the admitting physician.

3. Document, in detail, discussions with admitting physicians, consultants, and others who may influence what is ordered for the patient once he or she is admitted. Document agreement or disagreement on orders and treatments. A dictated chart is useful and much more complete than a "check-off chart" to document these discussions.

4. Do not write orders with which you disagree.

5. Look up unfamiliar drugs before agreeing to write orders for them.

6. Write orders only for the time period between admission and the required appearance of the attending physician. (Thus the name "bridging orders.") This means not ordering tests or treatments beyond the bridging period.

7. Do not obtain informed consent for surgical procedures. This is the responsibility of the surgeon performing the surgery.

8. Do not abandon the boarded patient. Insist that the boarded patients be seen by the admitting physician in the same time frame required as though the patient left the ED. Since emergency charts are generally crowded, it's a good idea to write orders for boarded patients on a separate order sheet, thus minimizing the chance that important orders could be missed.

9. Make sure the patient and the patient's family, guardian, or significant others understand your role versus that of the admitting physician.

10. Make sure any holding orders include a caveat to the ward nurse to call the admitting physician for any clarification of orders or change in the patient's condition.

11. When in doubt, proceed in the patient's best interest.

References

1. ACEP Policy Compendium, 2007. http://www.acep.org/workarea/downloadasset.aspx?id=9104. Accessed 5/21/08.

2. AAEM Position Statement on Admission Orders, Nov. 13, 2001. http://www.aaem.org/positionstatements/admissions.php. Accessed 5/21/08.