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In several recent malpractice claims involving patients who died of a staph infection after discharge from EDs, policies became the central issue.
“The EP orders blood cultures. Staph grows 24 hours later and the EP is notified. The patient is never called back and ends up severely ill or dead. This scenario happens too often,” says Amy Evans, executive vice president in the Bellevue, WA, office of Western Litigation, a professional liability claims and risk management company.
A common fact pattern in these cases is the EP orders the proper labs and cultures, then informs the patient that he or she will be contacted with the test results. The EP or charge nurse on the next shift is notified of the results; in some cases, the nurse thinks the EP will call the patient while the EP assumes the nurse will do so.
“In other situations, we see the task being delegated to the desk clerk to contact the patient with instructions to return ASAP,” Evans says. “One or two calls are made, but the patient is not reached.”
Occasionally, the phone number provided by the patient is not active.
“In each situation, the patient’s health declines and they return in a worsened condition or die,” Evans says.
During the course of malpractice litigation, it becomes clear no one really knew who was supposed to follow up with the patient. For the plaintiff attorney, being able to demonstrate the ED staff weren’t aware of relevant policies, “is a free shot that shows ignorance,” Evans says.
Evans has also seen policies involving discrepancies on diagnostic or lab tests become a big issue during malpractice litigation.
“ED staff do not know who is responsible for calling back the patient when labs come back positive after discharge, or when radiology’s findings are not consistent with the ED physician’s discharge diagnosis,” she explains.
Jason Newton, senior vice president and associate general counsel at Medical Mutual in Raleigh, NC, has seen cases where the plaintiff attorney demonstrated that ED staff weren’t aware of departmental policies for reporting critical values for patients in the ED; monitoring of patients who are suicidal; monitoring of and precautions for patients at risk for falls; seizure precautions; indications for, monitoring of, and releasing of restraints; use of side-rails; triage; and confidentiality. Each of these cases settled prior to trial:
“The fact the ED physician permitted the patient to ambulate unassisted was contrary to seizure protocols,” Newton says.
“Several days later, the patient returned to the ED with absence of fetal heart rate. The child was delivered stillborn due to cord hemorrhage,” Newton says. The hospital policy stated the patient should have been admitted for observation.
“Though the defendant testified a verbal order was given to admit the patient for observation, the record did not contain any notation that had occurred,” Newton explains.
“In the meantime, the patient’s labs came back positive for critical values,” Newton says. “Although the nurse received these, they were not reported to the ED physician.”
When a bed became available, the nurse went to get the patient, who could not be roused and was incontinent. The EP became aware of the critical values and ordered repeat labs.
“The patient expired due to severe metabolic acidosis,” Newton says. Postmortem studies revealed acidosis was secondary to ingestion of antifreeze.
“The ED physician was criticized for, among other things, failing to do any reassessment of the patient in the six hours the patient was waiting for a psychiatric bed,” Newton says. “This was contrary to hospital policy.”
Here is how plaintiff attorneys typically demonstrate ED staff were not familiar with relevant policies:
1. In the written discovery phase, the plaintiff’s attorney requests copies of any possibly applicable policies that were in effect at the time of the patient’s treatment.
2. The plaintiff’s lawyer scours the policies to find some portion or portions with which the defense did not comply in the particular episode of care.
3. In depositions of the providers, the plaintiff’s lawyers will ask if they were familiar with the relevant policies at the time of the care.
Sometimes, EPs have to testify they didn’t know about a relevant policy.
“If the providers contend they were familiar with the policies, the plaintiff’s lawyer will contend the provider must not have been familiar with the policy, because the action or inaction alleged is contrary to the provisions of the policy,” Newton says.
Here are some actual deposition questions plaintiff’s attorneys have asked:
4. The plaintiff attorney can utilize electronic medical record audit trails to conclusively prove whether a provider accessed a particular policy during a particular episode of care.
“We’ve had a few cases where internal e-mails were requested, and they showed the EP tried to access the applicable policy after the incident and sent e-mails to administration criticizing the lack of accessibility to policies,” Evans says. Both the EP and the hospital shared liability, because the EP did not make efforts to know the policies before treating patients.
“The defendant EP and hospital are now at odds with one another over availability of the policies,” Evans notes. “Plaintiffs’ attorneys thrive when defendants are critical of one another.”
EPs might believe a policy is not appropriate for a particular patient. If so, “draft a brief note with your thought process,” advises Kenneth T. Lumb, JD, an attorney with Corboy & Demetrio in Chicago. “Almost any decision can be defended if there is a reasonable basis for it.”
Juries frequently interpret failure to follow policies as the equivalent of violations of the standard of care.
“The plaintiff’s lawyer contends the policy is not a guideline, but rather, sets standards of care, and if the policy was not followed to the exact letter, then the provider(s) must have breached the applicable standards of care,” Newton says.
In a medical negligence trial, it is the jury that ultimately determines the standard of care applicable to the case.
“To do so, the jury is instructed that it must rely on expert testimony or other specific kinds of evidence of the standard of care,” Lumb notes.
In most jurisdictions, an organization’s policies and procedures are independent evidence of the standard of care.
“Thus, a hospital or ED policy, bylaw, or other similar document is admissible as evidence of the care required,” Lumb explains. It is not conclusive, and may be rebutted by expert testimony or other documents or by testimony as to why it did not apply in a particular situation. “It is, however, generally quite persuasive,” Lumb adds.
If an ED or hospital policy is violated, the plaintiff may argue the policy and the standard of care are the same.
“Where an ED physician complies with a policy, however, the defense can argue the policy was consistent with the measures required under the standard of care,” Lumb notes.
Because a policy can be used against a hospital or physician that ignores or violates it, one might be tempted to believe they should not be drafted in the first place.
“But policies also become relevant in their absence,” Lumb warns.
Admissible evidence of standard of care also includes accreditation standards and Medicare regulations — both of which require hospitals to draft, implement, and enforce appropriate policies and procedures.
“Under the concept of corporate or institutional negligence, a hospital can be held accountable for failing to promulgate or enforce appropriate policies, or for failing to properly train its personnel regarding those policies,” Lumb adds.
While a hospital can argue it is not responsible for the failure of an independent contractor in its ED to administer tissue plasminogen activator to a stroke patient, it can still be held accountable for failing to have appropriate policies in place.
Lumb has seen EPs admit in depositions they never read the ED’s policies and procedures manual.
“The single most effective way to avoid being tripped up by a policy is to read it and follow it in your patient care,” he says.