EXECUTIVE SUMMARY

EPs are not absolved of legal responsibility for admitted patients who remain in the ED while waiting for an inpatient bed to become available.

  • Juries rely on documentation to determine what information was communicated to the admitting physician.
  • Providing treatment to admitted patients can lead to the EP being held to a higher standard of care.
  • Undocumented interactions are problematic for the defense.

An ED patient might be stable when the decision is made to admit, but the patient’s condition can deteriorate suddenly while he or she is “boarded.”

Rodney K. Adams, JD, has handled several malpractice cases involving this scenario. In each case, the attending physician agreed to admit the patient, but the patient remained in the ED. During that period, a complication arose.

“There is always some ambiguity as to who is in charge,” says Adams, an attorney at Richmond, VA-based LeClairRyan. Since the EP is the one who is physically present, he or she often is presumed to be primarily responsible for the patient. This is the case even if hospital bylaws state that the attending is responsible once the patient is accepted for admission. “As the one who is standing right there, it’s hard for the EP to wash their hands of the whole thing,” Adams says.

One recent malpractice case involved an intoxicated patient who was brought to an ED after being stabbed in a fight. The EP asked the surgeon to come examine the patient because of concerns about the patient’s fluctuating blood pressure. The surgeon agreed over the phone to admit the patient.

However, the patient remained in the ED for several more hours waiting for the surgeon to arrive and finally collapsed. What the EP believed was a simple laceration turned out to be a penetrating wound of the internal iliac artery. By the time the surgeon finally arrived, the patient was already in the ICU. “The EP had actually gone up to run the code,” Adams notes.

The patient subsequently died after a lengthy ICU stay. The family sued both the EP and the surgeon. The litigation focused on the communication between the two physicians — specifically, what was stated regarding how quickly the surgeon had to get to the ED.

The EP testified that it was the surgeon’s responsibility, not the EP’s, to determine how quickly the surgeon needed to get to the ED. The surgeon countered that the EP stated that the patient was currently stable. Since no emergency was communicated, the surgeon simply came to the ED to check on the patient during his usual morning rounds.

The family filed two separate lawsuits against the EP and the surgeon, both of which resulted in a defense verdict. Since the lawsuits were filed separately, the physician defendants weren’t in the position of pointing fingers at each other. If the specialist and the EP are at odds, documentation probably is going to be the deciding factor as to who’s held liable. “Juries tend to believe what’s written down,” Adams says.

The EP can testify that he or she strongly recollects something he or she told the admitting physician. This is tough for the jury to swallow if that piece of crucial information is nowhere in the ED record.

“Jurors have told us, ‘If it was that important, the doctor would have written it down,’” Adams notes.

A patient presented to a Texas ED with an ST-elevation myocardial infarction. He was admitted to the cardiology service, but remained in the ED awaiting transfer to the cardiology catheterization lab. It took more than two hours for the patient to be transferred. “In that time, the patient deteriorated to the point of having widespread heart muscle death, losing his ability to work and requiring aide and attendant care for the rest of his life,” says Stephen A. Barnes, MD, JD, FACLM, an attorney at McGehee, Chang, Barnes, Landgraf in Houston.

The EP was sued, along with the hospital and cardiologist. A jury found all three defendants liable. “The reason for such co-liability, including the ED physician, is because the common practice of ED physicians to ‘wash their hands’ of a patient, once that patient is transferred or admitted, is not founded in medical or ethical principles,” Barnes explains. It’s easy for a jury to understand that the EP, as the doctor physically present, could have done something. In the above case, for instance, the EP could have called the cardiologist back, called the catheterization lab back, transferred the patient to another hospital, or even given thrombolytic medication. “Keeping even a distant eye on patient flow may save the ED physician a lawsuit,” Barnes offers.

Even if a boarded ED patient’s condition remains stable, there are other legal risks that arise just by virtue of the patient remaining in the department.

“Patients may fall off a cart, pull out an IV, or fall. Often, they aren’t being watched that closely,” Adams says. ED staff face legal risks if they disregard the boarded patient’s safety. “They’ve got to make a judgment call about whether the patient needs an aide with them when they go to the bathroom, or needs some type of restraint,” Adams explains.

Also, there is the question of how much care the ED should provide while the patient remains in the ED. Both insufficient care, and going above and beyond, pose legal risks for EPs. “There is always that tension between providing only emergency care, and providing whatever care the patient needs,” Adams says. Some EPs believe they should provide whatever care is possible while the admitted patient is in the ED. This can lead to “assumption of responsibility,” meaning the EP could be held to a higher standard of care.

“Let’s say they decided to lance a boil themselves instead of having the surgeon do it. Then the EP has to meet the [surgical] standard of care,” Adams notes.

On the other hand, if the EP provides only minimal care to the boarded patient, this opens the door for a plaintiff attorney to allege that more should have been done. The fact that many interactions aren’t recorded in the ED chart makes the defense team’s job tougher.

“All of that stuff, in the ideal world, would get captured, but it doesn’t,” Adams says. “This can be a problem with ED cases.”

A busy EP might duck his or her head into the room of a boarded patient, engage in a quick conversation with an ED nurse about the patient, or look at the boarded patient’s X-ray. If none of this is mentioned in the chart, it’s easy to paint a picture of a patient who got ignored. “A brief note at regular intervals by a nurse or physician would go a long way toward proving the attentiveness of the staff,” Adams says.

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