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Plaintiff attorneys often allege an ED patient should have been seen immediately. Malpractice cases involving a patient who deteriorates while waiting are difficult to defend for these reasons:
Delay in treatment is one of the most frequent allegations in ED malpractice claims, says Marc E. Levsky, MD, a board member of the Walnut Creek, CA-based The Mutual Risk Retention Group.
“EPs are charged with the duty to not only provide appropriate and timely care for any given patient, but to provide the same care for many patients at once, never knowing at the time which is destined to have a bad outcome,” says Levsky, who also serves as an EP at Marin General Hospital in Greenbrae, CA.
The time the patient was seen by the EP and times of each intervention usually are documented clearly in the ED medical record, which plaintiff attorneys scrutinize in retrospect.
“It is impossible to act at the earliest possible moment on every finding on every patient when caring for 10 or more patients at a time, which is often the case,” Levsky explains.
Inevitably, care will be delayed for some ED patients. “These delays are easy to criticize in retrospect, when the focus is only on a single patient,” Levsky offers.
The plaintiff’s attorney and expert reviewing the ED chart inevitably ignore the time expended by the EP providing care to other patients, while the patient in question had something that ultimately proved to be significant and in need of intervention.
“To an audience unfamiliar with the ED, it would seem that the EP had been doing nothing as the condition of the patient in question deteriorated, though this is generally not the case,” Levsky says.
Some data on ED wait times are available publicly. “It is easy to compare a wait time to a published average,” Levsky says. “The challenge for the plaintiff’s attorney is to demonstrate that this was somehow negligent on the part of the defendant.”
Some EDs openly advertise their current wait times. “If a patient waits significantly longer than average at a facility which advertises short wait times, it could reflect poorly on the care providers, regardless of circumstance,” Levsky notes.
Frequently, plaintiff attorneys make an issue of wait times by drawing attention to an error in triage. Malpractice claims often allege that the severity of a patient’s condition was underestimated. “This could serve to place additional liability on the hospital, which usually employs the triage nurse, and is often thought of by the plaintiff’s attorney as having deeper pockets than the physician,” Levsky says.
A plaintiff’s attorney could ask if it is standard of care to allow a non-ST-elevation myocardial infarction patient to sit in the waiting room for three hours without labs, reevaluation, examination, or repeat ECG, says Jennifer L’Hommedieu Stankus, MD, JD, FACEP, attending physician at Madigan Army Medical Center’s department of emergency medicine and founder of Gig Harbor, WA-based Comprehensive Medical Legal Consultants.
If the ED patient’s wait time was longer compared to other EDs in the area and it potentially caused an injury, “I could see this as a problem,” Stankus says. “And where there is one win on this basis, you can bet that others will follow.”
Such cases often end up settled, especially if it appears the EP didn’t take the patient’s care seriously. Levsky explains, “Deterioration of a patient’s condition in the waiting room never looks good when trying to defend a case.” Stankus says successful lawsuits against EPs are possible under these scenarios:
A 36-year-old male presents with atypical chest pain and a normal ECG, and waits for three hours before anyone takes him to a bed. No labs were drawn at triage, but a troponin level now comes back positive, and staff perform another ECG, which is abnormal. The patient suffers non-reversible myocardial ischemia.
An elderly patient reports feeling off balance, difficulty walking, and burning urination. The triage nurse decides that a urinary tract infection is causing all the symptoms, and the patient waits for several hours. The EP recognizes that ataxia can be evidence of a stroke, and neuroimaging is obtained that demonstrates acute ischemic stroke. Now, the patient is outside the window for tPA, and suffers permanent neurologic injury, without a chance for a better outcome.
A 26-year old male is rear-ended in a motor vehicle collision with the complaint of headache, neck pain, and vertigo. It was a low-speed collision that happened hours ago, and there is no outward evidence of injury. The patient’s wife tells the triage nurse the patient is vomiting with worsening neck pain. The patient receives anti-nausea medication and continues to wait for two hours. The wife keeps asking for the patient to be brought back, but is told that there are more serious cases ahead of this and to please be patient. The patient continues to vomit, and experiences a seizure. Staff bring in the patient immediately and perform a CT scan. Based on the history of neck pain, headache, and vertigo after trauma, staff also perform a CT angiogram of the head and neck. These exams reveal a vertebral artery dissection, stroke, and, now, hemorrhagic transformation. The patient is transferred to a center with neurosurgical care, but this takes several hours, and the patient suffers a brainstem herniation and dies.
“The moral of the story is that the ED, and the physicians in the ED, are responsible for the patients who check in,” Stankus says. If someone relays a concerning story or troubling vital signs, the EP should alert the charge nurse to get that patient to the back as quickly as possible for a rapid assessment, Stankus underscores.
Proper triage is critical to avoiding catastrophic outcomes and lawsuits. “The most experienced nurse or an actual provider should be in triage,” Stankus says. “Even then, the EPs should be constantly scanning the waiting room, ‘looking for badness’ to prevent bad outcomes.”
Regular reassessment on all patients who experience a significant ED wait is the best way to decrease risk, says Stankus, “in what is an impossible situation for most EDs in this country, most of which have, at least occasionally, long wait times.”
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 (Author); Jonathan Springston (Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor).