Just because there are surges of respiratory patients in the emergency department (ED) does not mean there are any fewer stroke, heart attack, or septic patients.

There will not be fewer lawsuits, either, if any of these patients receive delayed care or are misdiagnosed, according to John C. West, JD, MHA, DFASHRM, CPHRM.

“The future of litigation can be summed up in one word, and that’s ‘tsunami,’” says West, principal at West Consulting Services, a Signal Mountain, TN-based risk management and patient safety consulting firm.

Remember the definition of medical malpractice, says Kenneth N. Rashbaum, JD: a departure from community standards of care that proximately causes injury or other damages. If an ED adhered to community standards during the pandemic, but delayed for a patient, says Rashbaum, “it would be difficult for a properly instructed jury to find liability against the caregivers.”

Particularly egregious delays or misdiagnoses could result in verdicts for plaintiffs. “But those cases would be outliers,” says Rashbaum, a partner at New York City-based Barton. In light of this reality, “the more responsible plaintiffs’ law firms, who evaluate their cases well at intake, will be likely to decline cases in which ER delays during the pandemic are alleged,” Rashbaum adds.

On the other hand, liability protections do not stop anyone from suing. “The courts have to allow these cases to go through the normal process,” West says. “They can’t circumvent things just because the situation was not normal at the time of the injury.”

West says that, in general, courts do not take emergency situations into account when determining if medical malpractice cases can go forward. “The problem is, we haven’t really had a situation like this since 1918. And in 1918, medical malpractice was virtually unheard of,” West notes.

In this legal climate, ED claims are most likely to be successful if delays are such that it “shocks the conscience of a reasonable person,” West observes. A good example of such a case is a recent malpractice lawsuit alleging a delayed evaluation of a patient with diabetic ketoacidosis. The patient was not given a medical screening examination, as is required by the Emergency Medical Treatment and Labor Act (EMTALA), for longer than 11 hours. “That was pretty egregious,” West acknowledges. “The issue was whether the screening was appropriate if it was excessively delayed.”

The vast majority of ED misdiagnosis cases West sees involve patients who were sent home, only to return a short time later in much worse shape. Those cases fall into two categories:

The diagnosis was not manifest at the time of the original ED visit. “In those cases, almost invariably, the person is diagnosed with something relatively minor and comes back acutely or dangerously critically ill,” West explains. This happens often with sepsis. “Sepsis is hard to recognize in its early stages,” West admits. Patients initially present with some aches and pains, but are not overtly septic. In cases like this, “it’s a toss-up as to whether there will be liability,” West offers.

In one case, a woman presented with hip pain and a pimple on her cheek that turned out to be an abscess. “She was septic, but not in full-blown sepsis. That was an EMTALA case,” West recalls. The patient was in the (intensive care unit (ICU) for four months, during which time both her legs were amputated below the knee, she lost the sight in one eye, and she developed severe and permanent lung damage. “The damages were capped by Virginia law at $1 million,” West reports.

In a case with a similar fact pattern, a woman presented with an injured elbow from a fall injury, but without an open wound or fever. The woman was discharged with pain medication and an X-ray. It turned out the condition was necrotizing fasciitis; the woman lost her arm. Since that diagnosis would not be on a reasonable emergency physician’s (EP) differential for an elbow injury, the EP was not held liable. “A reasonable EP would not do a blood culture if somebody injures their elbow,” West adds.

The diagnosis is manifest at the time of the ED visit, but someone misses it. “Those are pretty clear-cut negligence cases, and are very difficult to defend,” West says. The plaintiff argues that had the EP complied with the standard of care and performed the appropriate tests, he or she would have made the correct diagnosis. If there is any delay in recognition of stroke, sepsis, or heart attack, says West, “juries don’t want to hear excuses.”

Jurors look specifically at the care that the patient received — whether it met the standard of care and, if not, whether the breach of the standard of care caused the injury. The COVID-19 pandemic does not change that, West stresses. “The fact that you delayed the diagnosis of a stroke patient because you were full of respiratory cases and had nowhere to put them is not going to be a defense,” he cautions.

How well the EP handled the surge of cases is what is relevant. EPs cannot hire more staff, nor can they create more beds in the ED. “But they have to figure out how the make the best use of the staff and beds they do have,” West underscores.

Plaintiff attorneys pursuing misdiagnosis cases will ask defendant EPs about their usual practices. EPs can expect this kind of question: “Do you normally see stroke patients with a door-to-doctor time of 30 minutes or less?” If the EP agrees that is the case, the next step is to corner the EP into agreeing that he or she considers this time frame to be the standard of care.

“Then, [plaintiff attorneys] will jump on the doctor and say, ‘But in this case, you didn’t see the patient for two hours,’” West warns.

EPs might start talking about the complete and utter havoc that existed in their department because of COVID-19. The plaintiff attorney can move to strike that kind of testimony as nonresponsive. “The plaintiff attorney will say, ‘I am asking only about this patient,’” West explains.

In reality, the standard of care might well have been different at the time of the plaintiff’s ED visit vs. “normal” times. “The standard of care is a very flexible thing. It is not carved in stone somewhere,” West notes.

During depositions, EP defendants can testify that reasonable colleagues would triage the priority of all the different patients assigned to them. If the ED was full of COVID-19 patients at the time, says West, “the standard of care for normal circumstances goes out the window.”

However, the entire defense cannot hinge on all the other respiratory patients the ED was seeing. This only serves to support the argument that the EP rushed through the evaluation of the patient whose care is at issue. “It could look like the doctor talked to the patient for a matter of seconds, and made a premature diagnosis without actually considering all the available evidence,” West offers.

If a misdiagnosed patient experienced a terrible outcome, says West, “the hospital saying, ‘We were so busy that we couldn’t do X, Y, or Z’ is not good enough. Once all the [COVID-19] panic subsides, it may no longer seem like it was such an emergency.” The plaintiff attorney can argue, “We know you had a lot of patients. But you could have done better for this patient.”

“The law has never dealt with a situation like this,” West says. “This is new, and how the courts deal with it is anyone’s guess.”