Does an ED clinical policy state that all chest pain patients must undergo an ECG within 10 minutes of arrival, but it took somewhat longer? The slight delay might have had nothing to do with the plaintiff’s terrible outcome. But that does not matter; plaintiff attorneys can use it to paint a picture of substandard care, says William J. Naber, MD, JD. The policies become one more hurdle for the ED defense to overcome.
Naber, an assistant professor of emergency medicine at UC Health, has seen these issues relating to hospital policies come up during ED malpractice litigation:
• The provider deviates from a policy, and the ED chart offers zero explanation as to why. “When signing up for medical staff privileges, you agree to follow the policies and procedures of the hospital you work at. Most emergency physicians don’t think about that,” Naber says.
The defense team now has the added challenge of proving that the deviation from the policy was within the standard of care. “That’s really hard because usually policies are written around the standard of care,” Naber notes.
Guidelines from specialty organizations differ somewhat. From the perspective of the defense team, this means wiggle room. The same is not true of ironclad hospital policies. “If the hospital says, ‘We’re going to do it this way,’ and you deviate from it, you need to address that in your medical decision-making,” Naber offers.
There may be an acceptable alternative that is medically appropriate for a smaller group of patients. “The ‘alternative school of thought’ theory says that just because 85% of people do it one way and 15% another way, it doesn’t mean the 15% are wrong,” Naber explains.
There are many valid reasons for EPs failing to follow a policy to the letter. “Policies or accepted guidelines of care are written for the most common situations,” Naber notes. For example, the Surviving Sepsis Campaign’s updated 2018 recommendations call for an initial bolus of 30 mL/kg fluid bolus for patients with suspected sepsis. For a 100-pound patient, this may not be appropriate.
“If that person is 85 years old and has a bad heart, you may put them in congestive heart failure by giving them that much fluid,” Naber notes. In this case, the EP who gives less than the recommended amount of fluids might document: “Because the patient had unknown volume status and unknown cardiac function, I was cautious with fluids and reassessed the patient every hour.”
• The EMR does not contain all relevant policies. “When somebody comes in with pneumonia, sepsis, or a stroke, you want the EMR to have a built-in order set that helps you follow policies,” Naber says. For instance, this facilitates obtaining a National Institutes of Health Stroke Scale score for all patients with suspected stroke.
• Some policies are outdated. “Sometimes, a policy is written, it goes into some database, then people just forget about it,” Naber says. During discovery in malpractice litigation, the policy is produced, one that has not been updated in a decade. The hospital faces accusations of failing to update its own policies. Equally problematic are multiple policies on the same issue. This happens occasionally when new hospital leadership decides a policy is needed on something without realizing one already exists. “Now, you have two inconsistent policies,” Naber adds.
• Sometimes, providers are unaware of policies and procedures. “If it’s 3:00 a.m. and you don’t know how or where to find a policy, that’s a problem,” Naber cautions. An accurate database with good search functionality helps providers avoid this issue.
• Some policies are created by administrators without any clinical expertise. Unrealistic requirements lead to legal problems when they are not followed by well-meaning EPs. “When you’re creating a policy, you need a variety of people in the room, including frontline clinicians, to make sure it’s going to work,” Naber says.
Plaintiffs will want access to any and all procedures and protocols that are generated by hospitals and promulgated to their staff and credentialed providers. “This is a challenge we always fight on the defense side. It is a constant debate,” says Parisa Tabassian, Esq., an attorney in the Richmond, VA, office of Hancock Daniel.
The defense team argues that, legally, the policies cannot be the basis for establishing the standard of care for EPs; therefore, the policies should not be discoverable as relevant or reasonably likely to lead to admissible evidence. For example, in a malpractice case including allegations relating to wound care provided by hospital-employed nurses, a plaintiff may ask for all hospital policies relating to wound care.
“The court may rule these are properly discoverable, though not necessarily admissible in court,” Tabassian says.
Hospital policies do not constitute the legal standard of care. “But they can implicate the entity for not adequately training or supervising their personnel or not delivering optimal care,” Tabassian warns.
If ED providers failed to comply with the policy, the hospital is criticized during litigation for not meeting their own expectations. “In some cases, ED defendants have testified that they have no idea where the policies are located,” Tabassian says.