A young man with a history of recent hospitalization presented to an emergency department (ED) with fever and cough. After a chest X-ray revealed left lower lobe pneumonia, a hospitalist admitted the patient to the floor. No bed was available.

During the four hours the patient remained in the ED, his vital signs deteriorated and abnormal lab results returned. The ED nurse documented all this, but apparently did not inform the emergency physician (EP).

Finally, the patient was brought to the floor, but was found in acute respiratory collapse the next day. The patient was brought to the intensive care unit (ICU) and intubated, but died hours later. “This ended in a lawsuit with a seven-figure settlement,” says Stephen A. Barnes, MD, JD, FACLM, a Houston-based attorney who represented the plaintiff.

The family sued the ED nurse, the EP, and the hospital. The lawsuit alleged the providers failed to timely admit the patient to the ICU, and failed to provide empiric antibiotics for nosocomial pneumonia. “Given the patient’s recent hospitalization, this should not have been a presumed community-acquired pneumonia,” Barnes says.

The plaintiffs also alleged the hospital failed to provide airway support, and failed to provide bronchoscopy and bronchoalveolar lavage.

“These actions were alleged to be required either in the ED, the ICU, or both, as a continuum of care,” Barnes explains. The hospital settled the claim on behalf of the ED nurse. “The ED physician settled as well,” Barnes adds. “This was based on a ‘physical presence in the ED’ theory of liability.”

When ED patients are admitted but not yet transferred, that is a “point of weakness,” Barnes suggests. “In many hospitals in this scenario, the ‘attending’ physician role is immediately reassigned to the admitting physician or hospitalist.”

Yet ED nurses, not inpatient nurses, continue to care for the boarded patient. “It is dangerous for an ED nurse to rely on the electronic record to communicate significant abnormalities in this situation,” Barnes cautions.

Boarded ED patients can become unstable rapidly. “Verbal communication of such information by the nurse to the admitting physician is critical,” Barnes stresses.

Equally important is for the ED nurse to immediately involve the EP if there are any concerning changes in patient status or critical lab values. “If a patient needed intubation while still in the ED, a reasonable and prudent nurse would grab the nearest ED physician,” Barnes offers.

The ED nurse also can call the attending. “But regardless of who is the official ‘attending,’ the ED mindset should be that unless a patient is stable, physician ‘boots at the bedside’ are necessary,” Barnes says.

The hospital can be sued for vicarious liability if ED nurses fail to involve the EP. “The hospital may also be sued for direct liability for failing to have (or enforce) policies and procedures mandating rapid communication of critical data to the ED physician, regardless of patient admission status,” Barnes says.

It is difficult for the EP to avoid liability as the only doctor physically present when the situation went wrong. “I cannot overemphasize the jury mindset that imagines an ED as a close-knit box — an emergency room, not department — and thus assigns liability to the ED physician since that physician was ‘right there’ but did not take control,” Barnes stresses.

EP defendants can say they were unaware of the patient’s deteriorating condition. “But juries do not understand how that could be,” Barnes reports.

To complicate the matter further, the hospitalist taking the handoff from the EP is not always the doctor who actually cares for the patient. “Information is often distorted, misinterpreted, and forgotten by the time it is transmitted to the accepting hospitalist,” says Andrew P. Garlisi, MD, MPH, MBA, VAQSF, medical director of Geauga County (OH) EMS and University Hospitals EMS Training & Disaster Preparedness Institute.

Possible pitfalls include the patient going to an inappropriate setting (such as the ICU instead of telemetry), delayed antibiotics, or forgotten test results. “Wrongful disposition and delay in treatment compromises patient safety. Medical-legal consequences can be expected,” Garlisi warns.

There also is the risk of the patient deteriorating in the ED after the hospitalist accepts the patient. “It is often difficult for the emergency physician to contact the hospitalist repeatedly to provide updates every time the status of the patient deteriorates,” Garlisi says.

Hospitalists can insist the EP did not give enough information to avoid a catastrophic outcome. “Unless the phone conversation is recorded, which is unlikely, and could be submitted as evidence, the emergency physician is vulnerable in such situations,” Garlisi notes.

Documentation by the EP should indicate what was stated, the hospitalist’s response, any disagreements on what should be done, and final decisions made. But regardless of how excellent the documentation is, anytime a patient is transferred from the ED, this is “a high-risk time period for medical errors,” says Sandra L. Werner, MD, MA, FACEP, clinical operations director in the department of emergency medicine at MetroHealth Medical Center in Cleveland. Here are three scenarios that come up in malpractice litigation:

The boarded patient leaves the ED before an ordered medication is given, and nobody realizes it. The patient might receive the drug hours later, or not at all. “The delay could potentially lead to an adverse outcome, as in delayed antibiotics in a septic patient, or anticoagulation reversal in a hemorrhagic stroke,” Werner says.

The boarded patient deteriorates in the time between when the EP called report and when the patient is physically transferred to the floor. For example, say the EP calls report at 2:00 p.m., but the bed is not ready until 5:00 p.m. “Sometimes, after report is called, the patient is out of the ED doc’s mind,” Werner notes.

During those three hours, no one reassesses the patient, or no one notes the worsening condition. Nothing is communicated to the admitting team. Someone with an infection might go into septic shock, or an asthma patient might worsen suddenly. “These patients would now need a higher level of care,” Werner observes.

The ICU doctor disagrees the patient needs ICU level of care, so the patient is admitted to a regular floor. “If the ED doc feels otherwise, they can ask the ICU doc to actually come see the patient. Or they could talk to the ICU doc’s supervisor,” Werner offers.

If an adverse outcome happens, the fact there were arguments about the appropriate disposition is going to be scrutinized. Some ED charts state something inflammatory (e.g., the ICU doctor “refused to accept” a patient). “This piece of documentation would surely be of interest to a plaintiff’s attorney,” Werner suggests.

If the patient is admitted to the ICU with no beds available and ends up boarded in the ED, “this, in itself, could be a problem,” Werner cautions.

What if a patient should be in an ICU, but instead dies after remaining in the ED for a day? “I suspect family members might wonder if they received optimal care,” Werner explains.