There is a tipping point for any emergency department (ED) when the normal standard of care is no longer possible. As the COVID-19 pandemic unfolds, some EDs are coming close to reaching it.

“I am concerned we might end up getting to the point where we will change the standard of care,” says Robert B. Takla, MD, MBA, FACEP, a Detroit-based emergency physician (EP).

Hospitals are moving from conventional care to contingency care. For example, when intensive care units (ICU) are full, another 20% of patients still can be accepted into other areas, such as the post-anesthesia care unit or the stepdown, and still receive ICU-level care. Things change once the hospital exceeds 120% of conventional care, both in terms of space and resources. “Then, we approach a crisis standard of care. That’s when we may have to do things dramatically differently,” Takla notes.

For ED providers, appropriate interaction with the local emergency management and healthcare coalition is essential during this time. “They often provide additional resources and help prevent going into crisis,” Takla says.

Many EDs have created drive-up screening areas for anyone who presents with nonemergent complaints. EDs staff still perform a medical screening exam (MSE) on all patients, as required by the Emergency Medical Treatment & Labor Act. If an emergency medical condition is present, the patient needs more intervention and testing. “But with some patients that we would normally consider for further diagnostic testing or treatment in the ER, we have to think really hard about if that is what is safest for the patient today,” Takla adds.

That is because by bringing somebody into the building, ED providers are putting the patients at greater risk. For this reason, if someone appears stable, and the MSE uncovers no emergency medical condition, they are, in general, released, advised to follow up with their primary care physician, self-monitor, and return if their condition worsens. “You have to think of the entire ER as one giant microbiome. It’s not as safe for them to be in the ER as it was, say, three months ago,” Takla observes.

Providers explain the situation in the ED and hospital to patients if they think coming into the department could do more harm than good. EPs use informed shared decision-making. “Trying to do what is best for the patients, under these challenging conditions, is a tricky scenario,” Takla acknowledges.

Normally, defense attorneys want ED charts to include reasons for any possible deviation in the standard of care. “I feel there is going to be at least a little bit of slack given,” says Tiffany S. Hackett, MD, MBA, director of leadership development at Vituity, an Emeryville, CA-based provider of medical staffing services and hospital solutions.

Documenting all kinds of specifics on what should have been done for an ED patient, but was not, could look overly defensive, as if the EP knew care was substandard. “If something were significantly changed with how we care for the patient, I would describe it, and address why” says Hackett, who also works as an EP. “But in general, if you are doing the right thing for the patient, you’re going to be fine.”

Since ED practices are changing daily based on various factors, documentation could be a valuable reminder of why something was handled differently. “Literally, it could be that one day we are doing it this way, and the next week we do it another way,” Hackett says. For instance, the criteria for who is tested changes as kits become available and EDs learn more about who is becoming infected.

During the COVID-19 pandemic, care of other ED patients may differ from what it would have been in normal circumstances. Here are some examples:

Some patient histories are conducted by phone instead of at bedside. If something important is missed, it might help the defense to note how the history was taken. “I would put that in my chart. It might be helpful to state something like, ‘Per current ED procedures, this is the way we are doing things,’” Hackett offers.

Patients could end up receiving delayed care for time-sensitive conditions such as a heart attack or stroke. “If that heart attack patient had a fever, there would be some — but not huge — delays,” Hackett says.

The cath team might not go down to the ED, and the electrocardiogram might be obtained without the EP going into the room. “It’s not ideal. But there’s a lot we can do without having to go into the room with the patient,” Hackett notes.

With acute stroke patients, neurologists are discussing initial consults on a telehealth screen to avoid coming into the ED. “As long as we are communicating, there shouldn’t be significant delays,” Hackett adds.

There could be delays in intubation. Recently, a code blue was called for a COVID-19 patient in the ICU. This raised concerns about protecting providers who are performing CPR and using bag valve masks to ventilate patients.

“Those are potential life-saving interventions where you can aerosolize the virus,” Hackett says.

The code blue team cannot proceed without appropriate personal protective equipment (PPE). Even with everything ready to go outside the room, says Hackett, “it still takes a few solid minutes to don everything, and you generally need people to assist.”

EPs limit the number of times they enter patient rooms. “We’ve had conversations about being judicious with PPE,” Hackett says.

To conserve PPE, EPs are limiting the number of times they go into rooms to avoid changing gowns and gloves multiple times. “We try to go in there only once, unless the patient needs emergency intervention,” Hackett explains.

For patients with symptoms suggesting COVID-19, staff still may overlook other medical conditions. “We are focusing so much on COVID-19 that we need to remember that shortness of breath and fever could also be due to pneumonia, or a [congestive heart failure] or [chronic obstructive pulmonary disorder] exacerbation,” Hackett cautions.

Patients with shortness of breath cannot always receive the care they normally would. “There are some very effective treatments that we use in the prehospital setting and the ER to manage somebody with acute shortness of breath,” Hackett says. Nebulizers and bilevel positive airway pressure machines can alleviate the need for ventilators in some patients.

“The problem with both of those devices is that they aerosolize the droplets if somebody has COVID-19 or another infection,” Hackett laments.

Asthmatic or older heart failure patients struggle to wean off the ventilator. “You want to avoid it, if possible. But the treatment is not allowed to be used for safety reasons when we suspect COVID-19 infection may be a part of the clinical picture,” Hackett reports.

Some hospitals are asking ED providers not to use these treatments if the patient is suspected to have COVID-19 infection. If a nebulizer is not used for safety concerns, Hackett suggests EPs chart something like: “In light of the current COVID-19 pandemic and concern that the patient may have this infection, the patient was treated with an inhaler and not nebulized.”

Not all ED patients are going to be protected from infection. Anyone walking into an ED right now could contract COVID-19 from another patient, visitor, or ED provider. If the hospital failed to isolate infected patients, it could face allegations of negligence.

“We want to make sure we separate the upper respiratory infection patients from other patients, especially older patients with comorbidities. That’s one thing we need to be worried about,” Hackett underscores.

It would be pretty tough to prove anyone contracted COVID-19 from someone in the ED. However, since the virus is everywhere in the community, “that could be contended, but it would be hard to prove. It would be hard to envision how a patient could successfully bring a malpractice suit against a hospital,” says David Talan, MD, FACEP, FIDSA, chair emeritus of the department of emergency medicine and faculty in the division of infectious diseases at Ronald Reagan UCLA Medical Center in Los Angeles.

A plaintiff might be able to prove the hospital was negligent in the way they screened, handled, and isolated COVID-19 patients. “But it would be hard to prove that any healthcare worker or patient actually contracted it through those means,” Talan explains.

If a patient was not handled correctly, and a cluster of ED staff all contracted the virus while caring for that particular patient, “it wouldn’t be proof. But it would be closer,” Talan says.

It could give a jury sufficient reason to surmise that an ED provider contracted COVID-19 because of the hospital’s negligence. “If there’s generally a shortage of equipment, though, I don’t know how you’d blame the hospital,” Talan adds.

The plaintiff would need to show the equipment was available at the time. “They would also need to show that the hospital didn’t go to reasonable lengths to procure it,” Talan says.