At the scene of a motor vehicle accident, paramedics found a young woman unconscious. After she was brought to the emergency department (ED), the patient had a large contusion on her forehead, and was complaining of a headache. Nevertheless, she was alert and talking.

The treating emergency physician (EP) knew a CT scan was needed, but the scanner was out of service. It is unclear exactly when this important diagnostic test was going to be available. “This is a dilemma for the ED physician. Although the patient is stable at the time, the patient can rapidly deteriorate,” says Susan Martin, RN, JD.

The EP has only two choices: Transfer the patient to a facility with an available CT scanner, or wait for the out of service scanner to go live again. Calling a neurosurgical consult is not going to help much.

“The neurosurgeon is going to ask, ‘What did the CT indicate?’” says Martin, executive vice president of litigation management and loss control in the Plano, TX, office of AMS Management Group, a medical professional liability insurer.

In this kind of situation, Martin says EPs must consider:

  • whether the current facility’s neurosurgical care and operating rooms are available if the patient deteriorates;
  • the anticipated time frame for CT scans to be available at the current facility;
  • whether the ED patient is stable enough for immediate transfer.

Martin says calling another facility and transferring the patient emergently is the most appropriate action. “If the patient has a sudden event in the ED, and evacuation of a hematoma or other brain surgery is immediately needed, neuro will want an emergent CT and operating room,” Martin says.

Since the CT is the most definitive diagnostic test, sending her to a facility with a functional machine should be the first priority, says Martin, adding that loss of consciousness in the field and complaints of headache are concerning. “If she is not transferred, and the patient deteriorates with a neurological deficit, a lawsuit then follows,” Martin cautions.

Allegations would include delay obtaining a CT scan, failure to obtain consultation, and inappropriate monitoring in the ED. Martin has reviewed multiple cases in which patients did not transfer from a community hospital. In those cases, the patient deteriorated, and no operating room was available. The plaintiffs all alleged the same thing: The EP failed to transfer the patient to a higher level of care.

The EP defendant is going to have to answer this question: “What would you expect from a same or similar facility in this situation?”

“That is always a question raised by plaintiff attorneys, whether to a witness, to the defendant, or in closing arguments to the jury,” Martin observes.

Usually, the defense’s argument is the patient was not stable for transfer, and the ED was waiting for the neurosurgeon to come see the patient and make the final determination on transfer. “This is not a good position for the ED physician,” Martin argues.