EPs often respond to in-house codes in other hospital areas. Some legal risks in this scenario:

  • EPs might be accused of failing to secure the patient’s airway.
  • Sometimes, EPs are unaware of the patient’s correct DNR status.
  • Incorrect timing of events makes it appear care was delayed.

A 55-year-old man coded a few hours after C4-C5 disk surgery. “He was in his hospital room when he sat up in bed to take a pain pill and had a choking episode,” says Susan Martin, Esq., executive vice president of litigation management and loss control at Fort Lauderdale, FL-based Best Practices Insurance Services.

The man became unresponsive, and a code was called. “The emergency physician arrived just as the patient was being bagged by another physician,” Martin explains. The surgeon had been called and was on the way to the hospital. The EP believed the patient was intaking adequate oxygen with the bag valve mask but could not see anatomical structures due to surgical swelling in the patient’s neck. When the surgeon arrived, he performed a tracheotomy. The patient survived, but with some neurological deficits.

“The lawsuit alleged the ED physician should have put in a secure airway by any means to prevent hypoxia,” Martin reports.

The EP testified that he did not know what surgery had been performed and was not comfortable putting a hole in the neck or releasing the sutures, risking severe hemorrhage and harm to anatomical structures. The surgeon agreed with this at deposition and was not critical of the EP. The case went to a jury, who found the hospital negligent for giving medication orally, causing the patient to experience a choking episode.

“No negligence was found as to the ED physician,” Martin notes. The jury agreed that the EP had an obligation to “do no harm” in this situation and that the EP had made a reasonable decision to wait for the surgeon. Especially helpful to the defense was the entry in the ED chart indicating that the patient was “moving air via AmbuBag.”

“Documentation of a patent airway was key in this scenario,” Martin says.

Unique Legal Risks

EPs face unique legal risks when responding to codes in the ICU, labor and delivery, or elsewhere in the hospital. “Attending physicians are usually not available,” Martin says. The EP must rely on staff or family to obtain a quick history of the patient’s status, reason for admission, and pertinent medications (if needed).

“Post-surgical patients are most challenging,” says Martin, noting that ED physicians also must rely on unit crash carts and whatever emergency equipment is available. “In busy times in the ED, unless there are multiple physicians staffing the ED, the response to codes can be challenging.”

EPs cannot leave the ED unattended if other patients need immediate care. Most contractual agreements allow EPs to respond to codes as long as there are no patients with critical or emergent needs in the department. “But the ED physician’s first responsibility is to the patients in the ED,” Martin stresses.

Code Status at Issue

If a patient has a do not resuscitate (DNR) order in place, the EP should not receive a call for a code for that patient in the first place (at least in theory). “But once they get a call for a code, the EP has to act on that,” says Doug Williams, JD, a partner in the Baton Rouge, LA, office of Breazeale, Sachse & Wilson.

This can happen because the patient’s DNR status is unknown at the time the code is called. Because of the urgency of the situation, the EP would not be in a position to explore whether the patient is full code or DNR. “But if the emergency physician shows up, and all of a sudden there’s a family member there who says, ‘Wait, Mom is a DNR,’ that puts the EP in a difficult spot,” Williams explains.

If the EP has not yet resuscitated the patient, the EP should stop their efforts once they become aware the patient is a DNR, Williams says. But if the DNR patient has been resuscitated successfully, “it is not up to the emergency physician to reverse their successful efforts,” Williams says. It then becomes a separate issue, legally speaking — “the patient’s power of attorney to determine as to whether life-sustaining treatment will be withdrawn,” as Williams puts it.

One More Collateral Issue

Williams has seen other issues arise in medical malpractice litigation involving EPs’ response to in-house codes:

  • Which provider (the EP or the respiratory therapist) was supposed to be intubating the patient;
  • Whether intubation was performed in a timely manner (and if not, why);
  • Whether medication ordered was readily available.

In one case, the automated medication dispenser was not stocked with a reversal agent. The patient sustained a hypoxic injury. It was very doubtful that the slight delay in obtaining the medication caused the bad outcome. “But it was one more collateral issue in a case with poor documentation. The totality of the negative inferences played a role in the outcome,” Williams notes.

Inaccurate records on the timing of events also can arise. It is critically important that the recorder is taking events down as they occur accurately. “I don’t believe I’ve ever seen a code response that wasn’t done extremely well. What I have seen is a code sheet that failed to tell the story, which created collateral issues in the litigation,” Williams recalls.

While some of these cases have been defended successfully, others have resulted in payment to the claimant. In some cases, the person documenting during a code used multiple clocks to make timed entries. The problem is that computers, wall clocks, and wristwatches are not always synchronized. “Two or three minutes difference can make it look like care was delayed, when it’s not the case,” Williams says.

Inconsistencies with recorded times appearing in various places in the chart cause similar problems. One nurse might chart a set of events, and another nurse charts the same events — but with slightly different times. This does not mean anything was done wrong, but it looks like care was delayed. “I have settled cases where I honestly didn’t believe anything was done wrong. But the charting wasn’t telling the provider’s story and was averse to them,” Williams adds.