The risk of a poor outcome for a critically ill child “is high when a system is not ready to meet the emergency needs of that child,” says Katherine Remick, MD, FAAP, FACEP, FAEMS, chair of the National Pediatric Readiness Project (NPRP). New guidelines from the NPRP can be used to prove that an ED fell short in this regard.1
A major risk for EDs is “the unanticipated presentation of a critically ill or injured child,” Remick notes. To evaluate EDs’ pediatric readiness, NPRP surveyed more than 4,000 ED leaders about compliance with recommendations from a 2009 policy. There were some concerning findings that could arise during ED malpractice litigation:
- A physician or nurse pediatric emergency care coordinator did not work in half of EDs;
- Fifty-five percent of EDs had not created a quality improvement plan to address pediatric emergency care;
- About half of EDs lacked a disaster plan that included care needs for children;
- About one-third of EDs had no process to ensure weights were measured and recorded in kilograms only. “If children aren’t weighed in kilograms only, this can result in medication dosing errors and significant harm,” Remick explains.
The guidelines could help plaintiffs demonstrate that ED care was negligent. Still, guidelines alone do not establish the standard of care. “They can, however, be used by plaintiff’s attorneys and experts as evidence to support allegations that the care provided was below the standard of care,” says Jonathan M. Fanaroff, MD, JD, professor of pediatrics at Case Western Reserve University School of Medicine.
He says allegations in pediatric ED malpractice claims tend to involve a delay in treatment or a missed or incorrect diagnosis. For instance, malpractice claims have alleged EPs diagnosed gastroenteritis when the child actually had appendicitis. “Utilizing critical thinking and reevaluation can minimize the risk of cognitive errors,” Fanaroff says.
Most EDs see a tiny number of pediatric patients compared to adults. “Specifically, 69% of EDs see fewer than 15 children per day,” Remick notes. These EDs are not necessarily ready to manage a critically ill child. Although 83% of pediatric ED visits occur at these low-volume sites, the frequency of critically ill children is low.
“High-quality emergency medical care requires that the entire system be ready to manage that child,” Remick says. This includes triage, administration of precalculated drug doses, maintaining pediatric-specific skills, and much more. “Unfortunately, all of the elements of pediatric readiness, as listed in the policy statement, are not required for ED/hospital accreditation or licensing,” Remick adds.
This is not apparent to the average person who spots a sign that says “Emergency Department.” “It is highly unlikely that any parent with a critically ill child will bypass that sign,” Remick says. “It is assumed that all emergencies can be managed there.”
The public expects that any ED should stand ready and able to handle any pediatric emergency, including a critically ill child. Several states offer voluntary pediatric readiness recognition programs for EDs. “However ... over 95% of hospitals do not participate in these programs,” Remick says.
Although plaintiff attorneys can use the guidelines to demonstrate that the ED failed to meet the standard of care, the reverse is not true. Following the guidelines will not necessarily protect an ED against litigation. “While guidelines can help, they should never be thought of as ironclad protection against malpractice,” says Andrew. C. Wong, MD, MBA, RDMS, FACEP, vice chair for clinical operations in the department of emergency medicine at UC Davis Health.
Plaintiffs can cite guidelines to support allegations that a child’s adverse outcome happened because the ED was noncompliant.
“For example, the guidelines recommend that evidence-based clinical pathways or decision support be available to EPs in real time,” says Kathleen Shostek, RN, ARM, CPHRM, FASHRM, CPPS, a senior risk management consultant for ERC Risk Solutions. This can help with high-risk conditions such as fever, which can be indicative of sepsis or meningitis. Both conditions can result in high morbidity or mortality if not identified and treated timely. “If either of these conditions are missed and the child is harmed, allegations could include a failure to follow currently available protocols,” Shostek says. The same is true if an infant could not be revived due to a lack of pediatric resuscitation training, child-sized resuscitation equipment, and pediatric stock medication doses. “His or her chance of being revived was lost. Thus, the ED may be held liable,” Shostek adds.
Steven A. Medina, JD, an associate at Post & Schell, says plaintiff attorneys can capitalize on the new pediatric readiness guidelines in several ways:
• Become familiar with requirements before an action is initiated in the court system. “An attorney who has a working knowledge of the new guidelines could be better positioned to effectively investigate the factual background of a potential claim,” Medina explains.
• Leverage any variance between the guidelines and the care at issue when communicating with experts and drafting the complaint. Doing so may lead to stronger expert opinions in support of a given claim and complaints that are pled in an attempt to impose the guidelines as the applicable standard of care, Medina says.
• Use video during cross-examinations and closing arguments. “Technology goes hand-in-hand with trials in today’s courtrooms,” Medina says. If ED care conflicts with recommendations in any way, it can be displayed on a video screen — multiple times, if possible. A common allegation: The EP failed to promptly transfer a child to another facility for a higher level of care. At trial, the plaintiff attorney will cross-examine the ED director as to whether the defendant hospital had on hand written procedures specific to pediatric interfacility transfer.
If the answer is no, the attorney can call attention to the exact relevant language in the guidelines: “ ... hospitals should have written pediatric interfacility transfer procedures and/or agreements that include ... defined processes for the initiation of transfer, including the roles and responsibilities of the referring facility and referral center (including responsibilities for requesting transfer, method of transport, and communication).”1
This alone could be potentially devastating for the ED defense. “But it is important to note that the harm would likely extend beyond a jury merely hearing damaging testimony,” Medina says. In all likelihood, the guidelines would be displayed for the jury to see and consider while the testimony unfolded and again during closing arguments. “This drives home the point that the hospital was ill-prepared to treat the plaintiff and thus negligent,” Medina adds.
Failure to follow guidelines does not, in and of itself, constitute a deviation from the standard of care. “But a jury is likely to weigh that fact when considering whether the hospital was negligent,” Medina offers. In terms of ED policies, Medina says that a policy that exceeds the guidelines is likely to be sufficient to defend against a claim of corporate negligence. Further, a policy that falls below the standards of the guidelines is likely to present legal problems for the ED and the hospital. “The plaintiff’s expert will have ammunition to opine on the hospital’s alleged shortcomings,” Medina explains.
- Remick K, Gausche-Hill M, Joseph MM, et al. Pediatric readiness in the emergency department. Pediatrics 2018;142. pii: e20182459. doi: 10.1542/peds.2018-2459.