If plaintiffs allege they received poor care in an emergency department (ED) because of their race, there is plenty of potentially admissible research that demonstrates it is indeed possible.

“It’s important for the defense to consider evidence in the literature that the plaintiff attorney could use against the defendant,” says Jay M. Brenner, MD, FACEP, medical director of the community ED at State University of New York Upstate Medical University in Syracuse.

People of Black or Latin American descent coming to the ED with cardiac symptoms were less likely to be admitted to specialized cardiology units than white patients, according to the authors of a study.1 “Frontline clinicians have a unique vantage point to identify and characterize inequities in care,” says Regan H. Marsh, MD, MPH, one of the study’s authors and an assistant professor of emergency medicine at Brigham and Women’s Hospital in Boston.

Marsh and colleagues decided to conduct the study because of a worrisome trend they observed in their own ED. They noticed Black and Latinx patients diagnosed with heart failure were frequently admitted to the general medicine service, as opposed to the cardiology service. “Our objective was to identify potential inequities in care and differential access to care,” Marsh says.

Researchers analyzed 1,967 cases of heart failure patients who presented to the ED. The study was not designed to identify malpractice risks. “However, any time patients experience disparities in care, or challenges in access to care, based on race, ethnicity, or gender, it can lead to worse outcomes and greater legal risk,” Marsh says.

Black and Hispanic pediatric patients were less likely to be classified as urgent or immediate than white pediatric patients, and also were less likely to be admitted to the hospital, according to the authors an analysis of 78,471 ED visits.2 “There’s an incomplete understanding of disparities in emergency care for children across racial and ethnic groups,” says Xingyu Zhang, PhD, the study’s lead author and research assistant professor at the University of Michigan School of Nursing.

If the plaintiff in a malpractice lawsuit is Black or Hispanic, relevant studies could be used to support allegations not only of negligent care, but of negligent care due to racial bias. “Bringing up such papers would be a shrewd strategy to inflame the jury, even if allegations of racial bias were logically refuted,” says Daniel Pallin, MD, MPH, former research director in the department of emergency medicine at Brigham and Women’s Hospital in Boston.

Admissibility would depend on the judge and the jurisdiction. “Inconsistency from judge to judge makes admissibility hard to rule out,” Pallin adds.

The plaintiff lawyer could use the research to paint a picture of racial bias leading to a poor outcome. Brenner says the ED defense team should consider these questions:

  • Was there a delay in care because of undertriaging?
  • Was there a missed opportunity to give treatment for myocardial infarction or hospitalization for heart failure?
  • Was there a missed antidote or a paucity of analgesia offered?
  • Was insufficient attention to follow-up and prescribing given with a seizure patient?
  • Were antibiotics not prescribed for an infection?

“These are all potential situations that the plaintiff attorney could exploit in a malpractice case,” Brenner explains. Here are some examples of findings that could be used to support allegations of racial bias in an ED claim:

  • White patients are more likely than Black patients to receive thrombolysis treatment for myocardial infarction.3
  • Black pediatric patients are more likely to receive an urgent triage score.4
  • Black patients are more likely than white patients to present to the ED with breakthrough seizures because of missed anticonvulsant medications.5
  • White pediatric patients are more likely than Black and Hispanic pediatric patients to receive antibiotics for viral upper respiratory infections.6
  • White patients are more likely to be hospitalized for heart failure than Black patients.7

To refute allegations of racial bias, the defense attorney could ask ED providers about their typical practices. “They would have to show that the care rendered was the same regardless of race,” Brenner reports.

Character witnesses attesting to nondiscriminatory behavior could help the defense. An ED nurse could testify to a long period of observation of the defendant in the ED, and never once witnessing discriminatory behavior. “It could help if they could testify to only seeing equal, consistent compassion without regard to race or ethnicity,” Brenner suggests.

The ED medical director or ED nurse manager could be brought in as witnesses as to whether the defendant had received any other patient complaints alleging discrimination. “This could be helpful to the defense if there were none — and helpful to the plaintiff if there were,” Brenner adds.

REFERENCES

  1. Eberly LA, Richterman A, Beckett AG, et al. Identification of racial inequities in access to specialized inpatient heart failure care at an academic medical center. Circ Heart Fail 2019;12:e006214.
  2. Zhang X, Carabello M, Hill T, et al. Racial and ethnic disparities in emergency department care and health outcomes among children in the United States. Front Pediatr 2019;7:525.
  3. Dehon E, Weiss N, Jones J, et al. A systematic review of the impact of physician implicit racial bias on clinical decision making. Acad Emerg Med 2017;24:895-904.
  4. Dennis JA. Racial/ethnic disparities in triage scores among pediatric emergency department fever patients. Pediatr Emerg Care 2020; Mar 2. doi: 10.1097/PEC.0000000000002072. [Online ahead of print].
  5. Fantaneanu TA, Hurwitz S, van Meurs K, et al. Racial differences in emergency department visits for seizures. Seizure 2016;40:52-56.
  6. Goyal MK, Johnson TJ, Chamberlain JM, et al. Racial and ethnic differences in antibiotic use for viral illness in emergency departments. Pediatrics 2017;140:e20170203.
  7. Lo AX, Donnelly JP, Durant RW, et al. A national study of U.S. emergency departments: Racial disparities in hospitalizations for heart failure. Am J Prev Med 2018;55:S31-S39.