Defense claims that unusually high volumes led to delayed care can result in expanded discovery, including census reports. If admissible, the plaintiff can use staffing data to:

show the ED was, in fact, not experiencing unusually high volumes on the day the plaintiff presented;

demonstrate a pervasive pattern of understaffing;

show that the hospital had not reacted quickly enough to increasing ED volumes.

After triage, a patient waited seven hours for treatment for acute pancreatitis, despite clinical presentation of systemic inflammatory response syndrome (SIRS).

“Certain stat orders took over four hours to execute,” says David Sumner, JD, a medical negligence specialist with a multistate trial practice. The ED defense team claimed that unusually high patient volume caused the delay. The approach backfired.

“The ER tried to defend extraordinarily lengthy registration to treatment intervention delays on the date of presentation by asserting the ED had an unprecedented number of patients the day of the occurrence,” Sumner explains. This opened the door for the plaintiff to obtain the ED daily census reports.

“The defense contentions placed the daily census reports for the ER at issue in the case, including acuity designations and time to disposition,” Sumner notes.

Armed with the ED’s daily census reports, the plaintiff refuted the claim that the ED was unusually busy. The census reports showed that during a 75-day period preceding the events, the ED saw even more patients on 47 separate days compared to the day the plaintiff presented. Overall acuity levels were no higher on the day the patient presented, either. This revealed that “the center was slow to enhance staffing to address historical greater ED patient volumes,” Sumner explains.

The plaintiff contended that, in fact, the ED was understaffed for expected patient volumes. “The defense that the ED was uniquely overwhelmed with patients on the day of the occurrence was largely discredited,” Sumner adds.

An ED’s staffing data are not necessarily going to be admissible. However, in this case, the ED made that data relevant by including patient volume in its defense. “You have to be careful about what doors you are opening up to much more expansive discovery by asserting certain defenses,” Sumner cautions.

The defense team placed adequacy of staffing at issue by asserting that their patient volume was exceptional on the day the plaintiff presented. “You cannot assert that the ER was too busy to provide more timely care without opening up for discovery the daily patient census, acuity information, and data on adequacy of staffing,” Sumner warns.

The plaintiff argued the ED did not have designated staff to review labs before patients were brought back to a room. Thus, the patient’s abnormal lab results (a white blood cell count of 21,000 accompanied by hemoconcentration, severely elevated lipase, and creatinine of 1.4) went undetected for hours.

“The hemoconcentration was a critical element to demonstrate why he needed earlier aggressive IV hydration and why a seven-hour delay in treatment influenced his outcome,” Sumner says. “He languished in the ER to his considerable detriment.” The patient developed multiple organ system failure. He survived a lengthy hospital admission, but was so compromised from the severity of his pancreatitis that he required numerous additional admissions related to his earlier critical care course. He died within months of the initial ED visit.

The lawsuit alleged the ED’s “surge” staffing policies were ignored. ED nurses admitted staff were not adhering to the surge plan. Further, the nurses admitted the surge plan probably was inadequate for their volumes even if invoked. “Any deviation from hospital policies and procedures can sink the defense of the case,” Sumner says.

Later, the hospital developed more effective surge plans to address the consistently higher volumes in its ED. “The case was settled at mediation for a confidential amount after expert witness opinion disclosures but before any expert witness depositions,” Sumner reports.

Typically, ED staffing is outside the control of an individual EP. Thus, it is a way to bring the hospital in as a defendant, says Bradley Shy, MD, medical director of the adult ED at Denver Health and Hospital Authority. Highlighting systemic problems with staffing and wait times could help an EP defendant to deflect liability by placing blame on the hospital’s shoulders.

“The hospital and the physician would have competing interests with regards to how crowding should be considered as a mitigating factor in that case,” Shy explains.

The EP might want to testify that the ED was understaffed constantly, which caused delayed care. The hospital, on the other hand, would want to place blame on the individual EP’s shoulders. “Crowding could be an important tool that plaintiff attorneys may use going forward,” Shy offers.

But first, the attorney would need data on ED wait times and staffing. “It can be difficult for an attorney to truly understand how busy an ED was at any given point, particularly a case that’s several years old,” Shy says.

Such data can paint a picture of ED providers who delayed care, rushed through an evaluation, or missed a diagnosis. “It could be used against hospitals if a bad outcome occurred during a particularly crowded time for the ED,” Shy explains.

If an ED was understaffed on just one random day, this information is not of much use to a plaintiff attorney. However, it is a different story if the attorney can show it happened routinely.

“It’s not enough that in flu season the waits are too long. If a year’s worth of data suggests there is a systemic, persistent practice of understaffing, that potentially might be admissible,” says Rade Vukmir, MD, JD, FCCP, FACEP, FACHE, president of Critical Care Medicine Associates and clinical professor of emergency medicine at Temple University and Drexel University.

If the attorney obtained the log from the date of the plaintiff’s ED visit, and 120 patients were seen, but the ED was staffed for approximately 80 patients, it seems like a smoking gun. But it might be that the ED’s average volume was 80 patients, and there was a larger-than-normal patient volume on that particular day. Juries will understand that “you’ve got to staff for the average; you can’t always staff for the busiest day,” Vukmir says.

Of course, EDs should have a system in place to adjust to sudden volume surges. “But if understaffing doesn’t happen every day, and you had a plan and a surge protocol in place, you’re generally OK,” Vukmir says.

It is different if ED understaffing occurs continually. That is something the plaintiff can use to bring the hospital in as a defendant. Whether it is admissible is another matter. “A basic principle of evidentiary law is that if the probative value of the evidence is more than the prejudicial effect, it probably will be allowed to be considered,” Vukmir explains.

The first question is whether extrinsic evidence (such as ED staffing data) is admissible in that particular legal venue. If so, and the plaintiff expert testifies that the ED continually staffed at significantly less than the recommended staffing levels for their patient volume, “that could potentially be an issue,” Vukmir cautions.