Even emergency departments (EDs) that do not normally board admitted patients might have been forced to do so when the first surge of COVID-19 patients began taking up all the intensive care unit (ICU) beds in March and April.1 This adds to the legal risks of this practice considerably, according to Stephen Colucciello, MD, FACEP.

“If suddenly a third of ED patients are boarders, that’s a very high-risk situation. There’s lack of awareness of what is supposed to happen,” says Colucciello, a professor of emergency medicine at North Carolina-based Atrium Health.

David Sumner, JD, has handled many cases involving ED patients waiting for an inpatient bed to become available. “Patients can fall into a black hole of poor or suboptimal management,” observes Sumner, a Tucson, AZ, medical malpractice attorney.

A hospital is obligated to act reasonably, says Gregory Dolin, MD, JD, an associate professor of law at the University of Baltimore. If a patient is stuck in the ED because there are no ICU beds available, a reasonable hospital cannot change that fact. But if an admitted, boarded ED patient deteriorates, “that may be a malpractice issue,” Dolin cautions.

The plaintiff can allege the emergency physician (EP) did not act as a reasonable doctor would. “The emergency physician must act reasonably under all the relevant circumstances,” Dolin notes.

Coronavirus patients taking up all the available ICU beds clearly is a relevant circumstance. “That is nobody’s fault,” Dolin acknowledges. However, failure to prioritize care appropriately for the patient who remains in the ED is a different story.

“If a reasonable EP would have put person A into the ICU and not person B, that can be a med/mal issue,” Dolin explains.

In terms of malpractice, the main question is going to be: Did the ED patient receive treatment as fast as he or she should have, given the relevant circumstances? “That applies to the real world, not a hypothetical make-believe world where you can get ICU admission at a moment’s notice,” Dolin notes.

EDs in known COVID-19 hotspots with long waits for ICU beds probably will be treated somewhat differently than smaller community EDs, where it was mostly business as usual. “The law requires the judge and jury to take the circumstances into account,” Dolin says. “How will they do that in the jury deliberation room is entirely unpredictable.”

It largely depends on the evidence both sides present. That does not mean the EP has to (or should) meticulously document everything going on in the ED at the time. “The goal is not to document in Patient A’s chart what is happening to patient B — or in the ER in general,” Dolin says.

If all ED charts are in good order, the records as a whole will tell the story. A picture emerges of what was happening in the ED at the time. “It depends on the quality of recordkeeping — or the quality of lawyering,” Dolin reports. “Sometimes, it just depends on juries’ idiosyncrasy.”

Some malpractice claims for boarded ED patients happen because admitting orders were ignored. Antibiotics were not given, for instance, even though the patients spent many hours in the ED. “The ED nurses were used to following only those inpatient orders that were marked ‘stat,’ and by practice, left other orders to the inpatient nurses,” Colucciello says.

In many claims involving ED boarding, “critical orders written by the admitting MD went unexecuted for a significant period.” Floor nurses do not take responsibility for admitting orders until the patient is physically relocated. ED nurses say the floor nurses are the ones responsible for orders because the patient already is admitted.

A recent malpractice case involved delayed care of an ED patient who presented with acute pancreatitis. Admission orders for intravenous (IV) fluids were written 15 minutes later, but the patient stayed in the ED for three hours. During this time, the admitting hospitalist assessed the patient, but gave no verbal orders.

The ED nurses never gave the IV fluids. Only after the patient was transferred to the floor was the order carried out. During subsequent litigation, the ED nurse testified that it was not their responsibility to execute admitting orders. The floor nurses testified it was not their job to do so until the patient was physically transferred. “The case settled at mediation prior to any expert depositions,” Sumner says.

The patient had already experienced substantial delays before going to a room. Once in a room, the patient waited even longer for an evaluation. “There were delays on top of more delays to provide this patient with adequate fluid resuscitation,” Sumner says.

Ideally, the admitting physician personally examines the patient in the ED. If not, says Sumner, “the ED staff may have a heightened duty to still vigilantly assess the patient awaiting a bed assignment and transfer.” Even if the admitting doctor does see the patient in the ED, “the ED nurses are still responsible for executing proper orders and treatment until the patient physically leaves the ED,” Sumner adds.

Until all of the following happen, EPs are potentially liable, according to Sumner:

  • The patient has been accepted for admission;
  • The hospitalist or admitting physician has written or entered admitting orders on the chart;
  • The patient has been physically relocated to the floor.

Colucciello says there are a few ways defense attorneys can establish that the admitting team, not the ED team, was legally responsible for the boarded patient:

Certain specialty organizations specifically address this issue. If transfer of admitted patients to inpatient units is delayed, the hospital must provide the supplemental nursing staff necessary to care for the patients boarded in the ED, according to an American College of Emergency Physicians (ACEP) policy.1

Another ACEP policy states that regardless of the location of an admitted patient within the hospital, the ultimate responsibility for an admitted patient’s medical care rests with the admitting physician.2 “Should an emergency occur, the EP should intervene,” Colucciello adds. “But non-emergencies depend on the admitting physician.”

ED nurses can contact the admitting team regarding all orders. “That hands the baton to admitting, which is where it should rest,” Colucciello offers.

There are hospitals that have instituted policies directing floor nurses to care for boarded ED patients. It needs to be clear whether only “stat” orders are handled by ED nurses (and routine orders are handled once the patient is moved to the floor), or whether floor nurses will come to the ED to manage all orders.

“Ideally, ICU nurses would come down to manage boarded patients. But that does not happen very frequently,” Colucciello says.

Hospital policies can directly address rounding on admitting patients in the ED. “If in the ICU the patients are rounded on each shift, then ICU patients in the ED need to be rounded on with the same frequency,” Colucciello says.

Even without a policy, ED leadership can secure an agreement from the admitting team that they will round on ED patients at certain intervals. “But it’s not their usual practice,” Colucciello notes. “What happens is they hope the patient will come upstairs, and they will be able to do business as usual.”

Orders for labs, diagnostic tests, pain management, and medications cannot just wait indefinitely. That means someone has to take action while the patient is in the ED. “The reality is that the patient belongs to admitting,” Colucciello argues. “The patient just happens to be temporarily housed in the ED.”

EPs can clarify the exact time the admitting physician took responsibility for the patient. In the electronic medical record (EMR), the time stamp might indicate that at 4:42, the patient was admitted to Dr. Jones. That is when the admitting orders were put in, but the admitting physician actually verbally accepted the patient at 4:00 and saw the patient at 4:30.

The EP can bump up the time frame for when the admitting took responsibility by making a note of it. The EP might chart something like, “At 4:00, spoke to Dr. Jones, who agrees to admit the patient,” Colucciello suggests. The plaintiff can argue the EP still was liable because something was missed, or because the patient was not stabilized adequately. “There are a lot of strategies that the plaintiff attorney will employ,” Colucciello says.

In seeking to keep the EP in the case, the plaintiff attorney will scrutinize whether the EP knew the patient’s condition was deteriorating and whether ED nurses told the EP the patient was in trouble. If the patient was in trouble, did the EP responded appropriately?

“We could still lose a case where the patient decompensates in the ED, but only for things we should have known about, and only where we failed to intervene appropriately,” Colucciello says.


  1. [No authors listed]. Boarding of admitted and intensive care patients in the emergency department. Ann Emerg Med 2017;70:940-941.
  2. American College of Emergency Physicians (ACEP). Responsibility for admitted patients. Policy statement. Ann Emerg Med 2015;65:130.