Even in normal circumstances, it usually is easier for a plaintiff attorney to criticize a big, impersonal hospital corporation than a practicing emergency physician (EP).
“That’s even more the case, probably exponentially more, when the potential emergency physician defendant is working double shifts with their own health imperiled,” says David S. Waxman, JD, a partner in the Chicago office of Saul Ewing Arnstein & Lehr.
No plaintiff attorney wants to make an EP the target of a lawsuit when there is a much more appealing defendant: the hospital. “The one calculation that the plaintiff bar is going to have to make here, and this may change over time, is that emergency physicians are heroes for stepping up and doing what they are doing in absolutely impossible circumstances,” Waxman says.
Plaintiff attorneys will look for the easiest target to maximize compensation for their clients. “That’s not going to be a heroic care provider who can put a face on this crisis,” Waxman adds.
For hospitals, legal risks stem from “inaction rather than action,” says Danielle M. Trostorff, Esq., a health law specialist at Degan, Blanchard & Nash in New Orleans. Hospitals can get into legal trouble by failing to train staff, or failing to take recommended precautions. “Liability is in not responding to the unique needs attendant to this pandemic.”
For hospitals following known Centers for Disease Control and Prevention guidance and taking necessary precautions, liability should be minimized. But staffing is another possible source of liability. “Staffing is always an area highlighted in medical malpractice cases,” Trostorff observes. “Plaintiffs like to argue staffing was inadequate.”
If the hospital is following staffing rules, the plaintiff is unlikely to succeed on that argument. “A hospital would argue they were in crisis mode and cannot be responsible for staffing,” Trostorff explains.
Hospitals usually adjust staffing based on census. “The hospitals are adjusting, and are working not only to increase beds to meet the increased need, but also utilizing staff from all available resources to meet the increased demand,” Trostorff says.
Even if the plaintiff proved a hospital did not do enough to ensure adequate staffing, there is another hurdle. “The plaintiff still has to prove that’s what caused a bad result,” Trostorff notes.
Some hospitals post emergency department (ED) wait times online. To some extent, this could refute allegations involving delayed care. “An individual is forewarned, and can go to another facility with shorter wait times,” Trostorff offers.
If there was no ED with shorter wait times, the plaintiff cannot allege the hospital was an outlier. “The hospital can’t be held to a higher standard because there is a pandemic,” Trostorff argues. “While they certainly need to adjust for expected volumes to the extent they are able, that can’t always occur.”
Just as it does for an individual EP, the legal standard of care to which hospitals are held varies along with the conditions and circumstances.1 Physicians are required to act as a reasonable EP would in the same or similar circumstances. This also applies to hospitals. “But it might be more difficult to get an expert to testify as to what a ‘reasonably prudent’ hospital would have done, faced with a coronavirus pandemic,” says George J. Annas, JD, MPH, director of the Center for Health Law, Ethics & Human Rights at Boston University.
It is possible that some ED patients will be seen by volunteer physicians outside the specialty. Annas says these two questions will arise if someone alleges only an EP should have treated the patient who presented to the ED:
- Does the patient have a right to know the qualifications of the non-ED physician? Even if the answer is yes, says Annas, “whether anyone would refuse treatment under these circumstances seems unlikely.”
- Would a reasonable hospital have used non-ED-trained physicians under the circumstances? “The latter will depend upon what choice, if any, the hospital had, short of closing the ED,” Annas says.
- Annas GJ. Standard of care--in sickness and in health and in emergencies. N Engl J Med 2010;362:2126-2131.