Current Liability Perspectives By Emergency Medicine Leaders

Crowding compounds risks

Overcrowding and emergency department (ED) boarding are the two top liability risks that Douglas Brunette, MD, assistant chief of emergency medicine for clinical affairs at Hennepin County Medical Center in Minnesota, sees for EDs currently.

"Long wait times for admission beds to become available stretch an already thin provider workforce, and lengthen the time to see a physician for the patients waiting at triage," says Brunette, adding that it is easy to miss the chest pain patient when there are 30 patients waiting to be triaged.

Geriatric ED patients "are an area that I see becoming more and more problematic," says Mark S. Rosenberg, DO, MBA, FACEP, FACOEP-D, chairman of the Department of Emergency Medicine, Geriatric Emergency Medicine, and Palliative Medicine at St. Joseph's Healthcare System in Paterson, NJ, adding that 38,000 of the ED's 135,000 annual visits are by geriatric patients.

Elder ED patients often present with vague complaints such as not feeling well, as well as have many comorbidities and decreased functional reserve, notes Rosenberg. "They frequently present with what seems like a minor problem that turns out to be catastrophic," he says. "All of this is compounded by the overcrowding and long wait times that many EDs are struggling with."

A 76-year-old patient with high blood pressure and diabetes may seem to have a minor complaint at first, but "may turn out to have an absolutely horrible complication with diseased intestines or bowel obstruction," says Rosenberg. "EDs are seeing this more often as the population ages, and more admissions are being held."

To improve care and reduce legal risks in this population, the hospital developed a geriatric ED. "Years ago, we decided that the best place to take care of kids is in a pediatric ED where staff are uniquely trained to understand normals and abnormals in kids," says Rosenberg. "We translated that into the geriatric population."

Additional training on geriatric patients was provided to all ED nurses and physicians, and the triage process was changed, with an EKG now done for any elder patient who presents with any complaint between the jaw and the pelvis.

"We have made many changes that I would recommend for all hospitals, to improve the care they are giving to seniors," says Rosenberg. "Good care translates into less risks."

Due to a hospital-wide initiative, Rosenberg says that admitted ED patients aren't typically held for lengthy periods in the ED while waiting for inpatient beds to become available. "We don't hold patients for a long period of time like most hospitals are complaining about," he says. "Patients held in the ED frequently don't receive the same standard of care that they would have upstairs on the floors or [intensive care units]."

While some hospitals have taken the approach of moving patients from ED hallways to inpatient hallways, Rosenberg says he doesn't feel this reduces risks. "Our hospital disagrees with keeping patients in hallways. That is just moving the problem elsewhere, and we didn't think it was good care," he says. Instead, an electronic tracking board has cut down significantly on the ED's wait times since patients are being discharged earlier in the day.

Leslie S. Zun, MD, MBA, FACEP, FAAEM, chair of the Department of Emergency Medicine at Mount Sinai Hospital and Chicago Medical School in Chicago, IL, says he sees increasing legal risks due to psychiatric patients spending longer periods of time in the ED.

One scenario involves the psychiatric patient who wants to leave against medical advice (AMA). "They might want to leave right away because somebody else brought them in, either the police or their family, and they choose not to be there for a psychiatric evaluation," he says.

In this scenario, says Zun, it's necessary to assess whether the patient is competent to leave AMA. "They have to wait until you've had a chance to assess their competency, so you're going to be keeping them there with or without their permission," he adds.

Another area of risk involves the emergency physician's (EP's) assessment of whether the patient is at risk for harming him- or herself or others. "They may be competent to leave AMA, but they might want to kill themselves or somebody else, and we can't let that happen," says Zun. A patient may not have a cognitive deficit, but may want to kill someone because he is hearing voices and not considered competent, notes Zun, or may be a gang member who is competent but plans to harm someone.

"There are tools one can use to determine competency to consent for treatment, but EPs aren't usually comfortable with those kinds of tools and don't apply them very often," says Zun, adding that there are no formal practice guidelines from professional societies to assess an ED patient's ability to consent.

"What this unfortunately leads to is that the EP has to do their usual and customary assessment," says Zun. "EPs tend to do a much abbreviated mental status exam. They may just be asking the patient orientation questions, which are not sufficient to determine if they have the capacity to consent."

Zun says that the term "medically clear" could pose legal risks because it is often misunderstood. An appropriate evaluation of the patient is needed to determine if he or she has any medical problems that are causing or exacerbating the psychiatric presentation, says Zun. "If they have some medical problem that's causing their psychiatric symptoms, then we should be treating their underlying illness. They may not need to go to psychiatry," he says.

The term "medically clear," however, is often misunderstood as indicating that the patient doesn't have any medical problems, says Zun. "What it means to me is that the patient may have medical problems but they have been stabilized. Maybe what we should say is they are 'medically stable.' Preferably, the EPs should write a detailed note about what they think is going on with the patient."

Regarding indications for involuntary admission, Zun says the biggest risk he sees is failing to hold an ED patient who later harms him- or herself or others.

"If the emergency physician, with good intent, held someone against their will, as far as I understand, the courts would support the physician's decision," he says. "If there is any question, you want to err on the side of keeping the patient."

If you decide involuntary assessment in the ED or admission is necessary, says Zun, "you really need to document as much as you can to explain why you made the decision to hold someone against their will. Anybody reading the chart should understand why you chose to do this."

Do EMRs Create Legal Risks?

Bruce Janiak, MD, professor of emergency medicine at Medical College of Georgia in Augusta, says he is very concerned about the legal risks posed by use of electronic medical records (EMRs) in EDs. "I don't know that there will be more suits, but I think there will be more suits that are lost, or can't be defended, or will be settled," he says, because the record can't support what the EP did.

"Plaintiff attorneys think this is the greatest thing since sliced bread, because almost every single ED record is subject to being easily ripped apart. Contradictions are just everywhere," says Janiak, adding that he reviewed two recent cases involving EMR documentation. "Both of the EPs are basically saying, 'I didn't mean what I said. The computer made me do it.'"

One case Janiak reviewed involved an EMR that asked the question, "Is this a penetrating eye injury," and the EP mistakenly answered the question with a mark slanted in the wrong direction to indicate that there was. It turned out that the patient actually did have the injury.

"There was no way to defend that. He had to bite the bullet, and the insurance company had to pay," says Janiak.

In a handwritten chart, says Janiak, the triage nurse's notes are up in front with the most important information the EP needs to know, such as, "Patient states chest pain for four hours." "That same phrase is in the EMR, but it's buried among 10 pages of information you don't need," he says. "Thrown into the middle of all that is something that is of value, but how do you find it? I've looked at EMR charts for 10 minutes and couldn't find the vital signs."

Janiak says that the result is a disjointed document that no layperson would be able to comprehend. "Juries are just now starting to see these, as attorneys blow them up on the big screens," he says. "I've had plaintiff attorneys tell me that it's hard for them to figure out what anybody did because they can't find it either."


For more information, contact:

• Douglas Brunette, MD, Department of Emergency Medicine, Hennepin County Medical Center, Minnesota. Phone: (612) 873-5683. Fax: (612) 904-4241. E-mail:

• Bruce Janiak, MD, Professor of Emergency Medicine, Georgia Health Sciences University, Augusta. Phone: (706) 721-7144. E-mail:

• Mark S. Rosenberg, DO, MBA, FACEP, FACOEP-D, Chairman, Department of Emergency Medicine/Geriatric Emergency Medicine/Palliative Medicine, St. Joseph's Healthcare System, Paterson, NJ. Phone: (973) 224-0570. E-mail:

• Leslie S. Zun, MD, Chair, Department of Emergency Medicine, Mount Sinai Hospital, Chicago, IL. Phone: (773) 257-6957. Fax: (773) 257-1770. E-mail: