Problematic Hospital Policies Can Be Used Against ED Defendants
An ED’s triage policy says any level 3 patient must be seen within 20 minutes. It sounds reasonable, but it is not always realistic.
On an unusually busy day, someone triaged as a level 3 might end up waiting an hour. If there is an unexpected poor outcome and litigation, the policy is going to be problematic for the defense team.
“We see this come up frequently,” says Alfred Sacchetti, MD, chairman of the department of emergency medicine at Our Lady of Lourdes Medical Center in Camden, NJ.
The problem is many EDs have created overly specific policies, and these can be legally problematic. Generally speaking, says Sacchetti, “the least constricted you make hospital policies, the better.”
Melanie Heniff, MD, FACEP, FAAP, says it is not enough for EPs to be aware of all hospital policies that apply to the ED. When possible, they also should participate in developing policies that make sense.
“It is challenging to defend cases where it can be shown that the physician or nursing staff violated a written policy,” says Heniff, an assistant professor of clinical emergency medicine at Indiana University School of Medicine. Policies should be viewed as general guidelines, always leaving ample room for individual physician discretion. The problem is some policies come off as telling EPs how to practice medicine.
“Policies need to recognize there is not a one-size-fits-all approach, even for patients with the same diagnosis,” Heniff suggests.
Policies with specific time frames are especially problematic. Some specify a certain “door-to-doctor” time. Others give specific time frames for diagnostic tests, such as “stat MRIs must be done within one hour.”
In reality, says Heniff, “ED volumes and a variety of patient and staff factors can affect how long it takes to get testing accomplished.”
ED nursing policies mandating repeat vitals in a certain period also are problematic during lawsuits. While it is certainly good practice to repeat vitals, especially if they are abnormal, it is not necessary in all cases.
“For example, in a well-appearing child who is being discharged, it’s usually not necessary to repeat a temperature,” Heniff offers. Hospital policies often mandate vitals be taken at the time of discharge. Sometimes, the EP is not made aware of abnormal vitals taken after he or she has completed discharge paperwork. “This can become a problem in a lawsuit,” Heniff notes.
Sacchetti has reviewed many ED malpractice cases in which an overly specific policy was used against the EP defendant. Most claims involved patients who waited longer than the times specified in the policies. Sometimes, these time frames reflect wishful thinking on the part of hospital administrators focused on improving patient flow. “Often, people making policies don’t practice clinically. They create a policy that’s unattainable,” Sacchetti observes.
There are some specifics in ED policies that can complicate malpractice defense:
• Many policies give specific time frames for how quickly people will be seen. If it is unrealistic that all level 3 patients be seen within 20 minutes, it is a mistake to put it in writing.
“There are going to be days when you can’t do that,” Sacchetti says. Instead, policies can state that level 3 patients will be seen “as soon as possible” or “before the level 4 and level 5 patients.”
• Some policies give overly specific criteria on when to order diagnostic tests. Some chest pain policies state that anyone older than age 50 years with chest pain should undergo an ECG.
This leaves no room for the EP’s clinical judgment. If, for example, a person fell and injured his or her ribs, or has herpes zoster, “it’s clear where their chest pain is coming from,” Sacchetti explains.
If the EP does not follow the policy, and later the patient experiences a myocardial infarction that was completely unrelated to their ED visit, the plaintiff can use the policy against the EP. The same is true of policies mandating everyone with sudden onset of headache undergo a CT scan. “You are going to have circumstances where people don’t need these tests,” Sacchetti adds.
Policies based on objective data, instead of patient complaints, are less legally problematic, Sacchetti says. These include actions to take if the patient’s blood sugar or cardiac troponins are above a certain level. Sacchetti says EPs should not be pressured to follow policies blindly. Instead, they should be using clinical judgment, considering questions such as: Is the pain cardiac in nature? Is the description of the headache suspicious for subarachnoid hemorrhage?
Policies requiring a certain diagnostic test for every chest pain patient or every headache patient may sound good to administrators. But this is not in the patient’s best interest clinically, Sacchetti says. There also are financial repercussions for patients who end up with a large out-of-pocket cost for a test they did not really need.
Patients rightfully expect EPs to use their clinical judgment to determine what tests are needed. “But if it turns out that somebody wrote a policy where as soon as I walked in the door it’s $1,500 for a CT scan, that pretty much everybody would agree I don’t need, I’m going to be pretty unhappy,” Sacchetti says.
• Policies may restrict what ED providers can do. The restrictions are well-intended. The problem is there always are going to be exceptions.
Some policies state EPs are not allowed to drain an abscess larger than a certain size, such as 3 cm. “Somebody may have an abscess that turns out to be much bigger than you thought,” Sacchetti says.
Similarly, some policies state EPs are not allowed to put in dialysis catheters. Almost all of the time, that is reasonable, according to Sacchetti. “But if a patient in renal failure presents and the vascular surgeon who normally puts in the catheters is unavailable, the EP may have to put it in,” he adds.
In unusual cases like these, the restrictions in policies can be used against the EP. If the EP did not follow a policy, jurors might not care about the reason. “If you write a decision tree that’s extremely descriptive, you are only going to wind up handcuffing the emergency physicians and staff,” Sacchetti cautions.
If the EP goes against a policy and someone sues, the defense attorney would love to see an explanation in the chart. It usually is not there. “To explain why you deviated is going to require a fairly time-consuming note,” Sacchetti explains.
A good example is decision trees used to determine if there is an invasive bacterial infection in a febrile pediatric patient. “If you follow it, it’s very cumbersome and never gets you to the right spot anyway,” Sacchetti says.
Ideally, the EP explains why it is not followed. Good documentation would look something like this: “There are other articles in the literature that say the use of the decision tree is not as accurate as described. Because of that, I am not using the data from it to make my decision on how to manage this child.”
“If the ED decides to use a decision tree, make sure it does not put your clinicians at risk because they frequently have to deviate from it,” Sacchetti advises.
One way to address this is with a disclaimer. This can make it clear that using a clinical decision tree is based entirely on the EP’s clinical judgment, with a statement such as, “If you encounter a child with a temperature, you might consider using this decision tree if you are not comfortable with your clinical assessment of the child.”
“This gives the ED clinician the option to use it, without mandating it,” Sacchetti adds.
Policies should be viewed as general guidelines, always leaving ample room for individual physician discretion. There cannot be a one-size-fits-all approach, even for patients with the same diagnosis.
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