Many EPs Rely on Observation to Mitigate Legal Risks
Many EPs routinely place patients in observation if those patients do not meet inpatient admission criteria but EPs believe the patients are at risk. This is true even if the perceived risk is just 1%, according to a recent study.1
“The motivation for this study was to extend our understanding of how emergency physicians make decisions about patients,” says Brad Wright, PhD, the study’s lead author.
Researchers interviewed 24 EPs who reported using a mix of intuitive and analytic thinking in initial decisions to admit, observe, or discharge patients, depending on the physician’s individual level of risk aversion. Key findings:
- Placing patients under observation made some physicians slow down, go through mental checklists, and approach things in a step-by-step manner;
- Others cautioned against overreliance on observation services in the face of uncertainty.
The researchers sought to understand how EPs decided to place patients in observation in the first place. They also wanted to know whether the additional time afforded by placing a patient in observation might permit EPs to slow down and shift from intuitive thinking to analytic thinking. “The biggest surprise in our findings is that there is no one-size-fits-all answer,” Wright says. EPs reported reliance on a mix of both types of thinking. “Most striking to us was that observation stays could prove to aid or inhibit decision-making depending on the physician,” Wright notes.
More experienced EPs and those who were more closely adherent to protocols seemed to use observation to aid decision-making.
“By contrast, when physicians just put someone in observation because they weren’t quite sure what was going on and weren’t comfortable sending the patient home, the patients could languish under observation for a longer period of time while undergoing numerous tests,” Wright adds.
The EPs were clear that they were prone to put patients in observation if those patients did not meet inpatient admission criteria but there was a sense that something was “off.” One or two EPs openly admitted that if they perceived the risk of an adverse event to be even 1%, they would likely place the patient in observation. “That means a lot of patients probably end up being observed that could be safely sent home, but it also means that patients are kept safe,” Wright offers. “Placing patients in an observation situation will lessen the chance of a lawsuit,” says Katherine M. Anderson, JD, an attorney with Baker Donelson in Memphis, TN. A recent case involved a young woman who came to the ED with a terrible headache. The patient was discharged with a diagnosis of migraine headache and cautioned to return to the ED if she experienced any further symptoms.
Hours after leaving the ED, she suffered a stroke. The patient sued, and the plaintiff attorney alleged the patient’s bad outcome could have been prevented if she had been placed in observation.
“‘If only you had observed the patient’ is a common attack from the plaintiff’s bar,” Anderson notes. Documentation as to why the patient was ready to be discharged is the best defense against this allegation.
Timothy C. Gutwald, JD, a healthcare attorney in the Grand Rapids, MI, office of Miller Johnson, says the fact that a patient was placed in observation can work against the ED defense team. It serves as another medical decision the plaintiff will argue was below the standard of care.
“It may be protective in an EMTALA lawsuit, assuming similar patients were also sent to observation status. However, in an EMTALA lawsuit, it is far more legally protective to have admitted the patient,” Gutwald says. Most federal jurisdictions have held that a good-faith admission extinguishes an ED’s EMTALA responsibilities.
A good plaintiff attorney will explore whether a patient met the criteria for either admission or observation. “It offers the plaintiff attorney and their expert another decision to criticize — and gives a jury an alternative to grab onto,” Gutwald adds.
Robert D. Kreisman, JD, a Chicago-based malpractice attorney, agrees that placing an ED patient in observation is not necessarily legally protective in the event of an injury or death to the patient caused by delay in diagnosis and treatment.
Recently, Kreisman was contacted by a woman who reported that her mother presented to an ED with slurred speech and loss of strength on one side. The patient’s daughter asked for an MRI to determine whether there was an onset of stroke. The patient was placed in observation, with several hours passing before the MRI was performed. The MRI revealed the patient’s stroke, which left the patient unable to speak and paralyzed on one side.
“This scenario may be one where a sound claim could be brought against the emergency department’s physicians and hospital because of the delay related to the time spent observing the patient rather than trying to diagnose and treat,” Kreisman says.
- Wright B, Martin GP, Ahmed A, et al. How the availability of observation status affects emergency physician decisionmaking. Ann Emerg Med 2018;72:401-409.
Many EPs routinely place patients in observation if those patients do not meet inpatient admission criteria but EPs believe the patients are at risk. This is true even if the perceived risk is just 1%, according to a recent study.
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