The odds of a medical malpractice claim resulting in a payment increase by 145% if a policy was not followed at some point, according to the authors a new analysis.1
“In my experience, ED [emergency department] policies represent acceptable community best practices,” says Paul D. Squire, JD, head of the healthcare practice at New York City-based Kaufman Borgeest & Ryan.
As such, failure to follow ED policies represents a deviation from accepted norms. “Recent cases ruled against motions for summary judgment and permitted negligence cases to proceed — in light of the fact that, in both cases, ED personnel did not follow ED protocols,” Squire reports.2,3
The courts referenced such failure as a factor, but did not establish direct liability for failure to follow ED protocols, Squire notes. “Ultimately, state courts will consider ED policies as one of a number of factors in determining whether there was negligence and liability,” Squire says.
Plaintiff attorneys will scrutinize hospital policies and compare them to what happened during the ED visit. “Plaintiff attorneys then use the policies to badger the physician on why everything wasn’t followed exactly,” says Matthew Pirotte, MD, FACEP, assistant professor of emergency medicine at Vanderbilt University Medical Center.
Months or years later, emergency physicians (EPs) usually cannot independently recall the particulars of the case. “At the deposition, they are trying to defend why they didn’t do absolutely everything that’s on a hospital policy,” Pirotte says.
The EP is left to fall back on generic statements such as, “This is my usual and customary practice.”
“That’s when you get into these endless circular conversations about every line of a policy,” Pirotte notes. “It can make for some painful moments in a deposition.”
ED providers view hospital policies as general guidelines, as opposed to hard and fast rules to follow. “But plaintiff attorneys have gotten very good at exploiting the gap between a jury’s knowledge of what a policy means to them and what clinical policies tend to mean in the ED,” Pirotte observes.
The defendant EP is left to try to explain it. Making that distinction “can be very hard for an unprepared EP to navigate,” Pirotte acknowledges.
The key is to respond to questions about policies in a way that a reasonable person will understand. Pirotte offers this response: “There are multiple policies that define certain aspects of patient care. But they never supersede clinical judgment. The way that I managed the case in question was consistent with my judgment on what was going on with that individual patient.”
Sometimes, the care at issue was reasonable, but somehow fell short of what the policy recommended. Possibly, the EP did not give as much fluid as suggested, or the EP did not obtain a consultation within the stated time frame. “That lack of aggressiveness becomes hard for the EP to justify,” Pirotte says.
One plaintiff attorney stated, “You have a sepsis policy, and you didn’t follow it, and the patient died. Now, you are trying to argue that the care you provided was superior to the policy that your hospital had in place?”
It helps if EPs know what is in the policies. “It’s pretty important these days for emergency docs to at least be somewhat familiar with the policies that surround the high-risk parts of our jobs,” Pirotte suggests. In ED malpractice lawsuits, Pirotte says there are specific policies that arise continually, such as sedation, transfer agreements, sepsis, and diabetic ketoacidosis.
It is helpful for EPs to include a note in charts on why some action did not occur. EPs can explain why specific antibiotics were chosen, instead of the ones recommended in the sepsis policy. EPs can explain why they chose to sedate a patient, even though the hospital’s policy recommends against it based on the American Society of Anesthesiologists’ classification system. “Many situations can come up where the safest option is to go ahead and sedate that patient,” Pirotte says.
He gives this example of good ED charting: “Policy states we should consider anesthesia consultation, but this is urgent. Discussed risks and benefits with the patient.”
“Generally, people understand that the whole point of being an EP is that you don’t just follow rules rigidly without thinking about them,” Pirotte explains.
If that patient ends up with a poor outcome, “then the policy becomes a very weak weapon,” Pirotte says. “And you are in a very defensible position by addressing things head-on.”
The ED defense team also should verify the policy at issue was, in fact, in place at the time of the ED visit. “You could be doing all this work to defend a doc on a policy that was put into place months after the case happened,” Pirotte says.
Hospital policies do not automatically equate to the legal standard of care. “But it’s certainly a bigger hurdle to cross as a defendant if you’ve clearly violated a hospital policy,” says Jesse K. Broocker, JD, partner at Atlanta-based Weathington.
Virtually all malpractice claims involving ED nursing care involve some kind of policy that was not followed. “The policies are really more about nursing care. It’s very rare to see a policy that dictates what a doctor does,” Broocker notes.
Ideally, ED policies include language that makes this point clear, such as, “Our policies do not dictate the clinical judgment of our physicians who are not employees but have privileges here.” Regardless, says Broocker, “plaintiff attorneys are trying to shoehorn policies against doctors now. We are seeing that a whole lot more.”
The sheer number of hospital policies is one reason. Hospitals are required to develop many different policies to achieve various accreditations and certifications. During discovery, plaintiff attorneys comb through them all. “They get a boatload of material, and find something that wasn’t followed to the letter,” Broocker reports.
At deposition, attorneys try to talk EPs into agreeing with statements like, “According to this document generated by the hospital at which you have privileges, this patient should have been deemed an intermediate risk for stroke.”
One plaintiff attorney argued, “This policy was generated for the specific purpose of patient safety by an all-star cast of people that the hospital deems to be the best of the best to determine what is the best thing to do in this kind of case. And it wasn’t done here.”
“The plaintiff lawyers can take the position that the hospital the EP works in [created] policies that dictate the standard of care, and that the EP did something they shouldn’t have done,” Broocker says.
In Georgia, while a policy does not set the standard of care, it is evidence of it. “These policies can come in even if they are not directly applicable to the doctor,” Broocker notes.
Needlessly inflammatory language makes matters worse. Some hospitals use terms such as “threat-level vital signs.” Plaintiff attorneys then can say, “Your own hospital says that any temperature over 103 is a threat-level vital sign.” Language that’s more equivocal, such as “should be considered,” is less problematic, Broocker says.
As part of some accreditation processes, hospitals are required to define criteria for risk stratification. Some ED malpractice lawsuits focused on the fact a patient was considered to be “high risk” based on hospital policies.
“The criteria aren’t meant to dictate the EP’s clinical practice,” Broocker says. “But now there’s a piece of paper out there that the EP is not aware of that says patients meeting these criteria are high risk.” Regardless of anything EPs say in their defense, plaintiff attorneys always can retort, “According to the hospital you work at, he or she is high risk.”
To avoid medical/legal landmines, hospitals can involve risk managers in drafting policy language, Broocker says. For example, a policy might state that a certain pulse oximetry score “can be a sign of respiratory distress.” That is better than stating, “A pulse oximetry score below 92 is emergent and needs immediate intervention.”
“Then you’ve got no wiggle room,” Broocker adds.
- CRICO Strategies. The Power to Predict: Leveraging Medical Malpractice Data to Reduce Patient Harm and Financial Loss. July 14, 2020.
- DelVecchio v. Huntington Hospital. Supreme Court, Suffolk County. 13-5416. May 30, 2017.
- Chin v. Khan. New York Supreme Court. N.Y. Slip Op. 32163. July 8, 2019.