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Malpractice cases involving boarded patients are sometimes triggered by the ED’s failure to carry out orders written by the admitting physician. Such cases often include these factors:
In a recent malpractice case, the question of who was responsible for carrying out an EP’s written orders on behalf of the admitting physician became a key issue. The neurologist accepted the patient for admission, but the patient remained in the ED because there was no bed available.
“The neurologist asked the EP to write admission orders for him, with neuro checks every hour,” explains Amy Evans, executive vice president in the Bellevue, WA, office of Western Litigation, a professional liability claims and risk management company.
During the three hours the patient spent in the ED waiting for a bed, he experienced gradual neurologic decline. When the patient arrived on the floor, the nurses noted the patient’s inability to move his arms and legs — a new finding since the last exam in the ED.
“The ED nurses testified that the admitting orders for neuro checks applied to the floor nurses, not them, as they were caring for active ED patients,” Evans says, noting two factors contributed to a jury placing liability on both the neurologist and the EP:
“Everyone was held responsible for the patient — mostly because no one took responsibility, and pointed the finger at each other,” Evans adds.
Evans says a common allegation in claims involving “boarded” ED patients is that the EP failed to convey the severity of the patient’s condition to the admitting physician, and failed to convey the expectation that the admitting physician will round on the patient in an urgent manner.
“The patient ends up falling through the cracks, and admitting physicians claim they thought they could round the next day,” Evans says. The patient is no longer considered an ED patient because he or she has been admitted. However, the patient is not monitored by the floor staff and attending physician because the patient is still in the ED.
“It needs to be abundantly clear which physician and staff are monitoring the patient,” Evans says.
She advises EPs to:
“If they didn’t confirm it, they need to keep calling specialists to get someone to come down,” Evans says. “The ED physician must be an advocate for the patient, and the handoff must be clear and unequivocal.”
If the admitting physician signed the orders, examined the patient, and delivered proper instructions to the right staff — ED nurses vs floor nurses — this minimizes the EP’s liability, Evans says.
“If the admitting physician only signs an electronic medical record and does not see the patient and formally take over care, the patient is still in limbo,” she says.
Megan Kures, JD, senior attorney in the Boston office of Hamel Marcin Dunn Reardon & Shea, says boarded patients present “a host of potential risks for EPs and admitting physicians.”
Often, the admitting physician isn’t physically in the hospital when the patient is admitted.
Therefore, the admitting physician is reliant on the EP to ensure orders are implemented and that he or she is receiving accurate and complete information about the patient’s condition and any changes that might occur.
“In the eyes of a jury, this shifts greater responsibility onto the ED team,” Kures says. “Telling a jury ‘it wasn’t my responsibility’ is never going to end well.”
Kures says the biggest risk arises out of the ED’s assumption that the boarded patient is the admitting physician’s responsibility.
It might seem logical that once the patient is admitted, he or she is the responsibility of the admitting team.
“But the reality is that a jury is not going to give the ED team a pass on a patient who decompensates under their nose,” Kures says. “Liability for the ED team does not automatically stop when an admission order is signed.”
Kures says ED providers may need to be proactive in these ways if a patient has been boarded for a prolonged period:
“No one can assume another team is taking care of something. Juries hate to hear that a provider assumed someone else was handling something,” Kures says.
Kures says that when dealing with a boarded patient, EPs should make sure the plan and communications about the plan are well-documented.
“The five seconds it takes to write that the communication took place might save hundreds of hours in litigation down the road,” she warns.
Documentation alone won’t make the ED provider immune from litigation, but it will make a subsequent claim more defensible.
“It is easier for juries to give a provider a pass when something is clearly written in the record than to accept testimony based on memories that are often several years old and subject to contradictory testimony,” Kures says.
Several years ago, Kures successfully defended an EP named in a lawsuit involving an infant boarded in the ED who decompensated and ultimately died during surgery.
“The key to this defense was excellent communication between the ED team and the admitting team. There was very frequent communication among the providers and a clear plan for this infant,” Kures explains.
The entire ED team was named in the lawsuit, along with the surgical resident who assessed the patient in the ED and coordinated admission with his attending physicians.
“The allegations were essentially that the infant was inadequately assessed and monitored in the ED, and that the surgical team was inadequately apprised of the severity of her condition,” says Kures, who represented each defendant in the case.
It helped the defense that none of the providers named in the lawsuit blamed one another.
“Everyone was on the same page, and there was not a hint of finger pointing,” Kures says. “When feasible, a united defense is best.”
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Contributing Editor); Shelly Morrow Mark (Executive Editor); Jonathan Springston (Associate Managing Editor), and Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner).