ED boarding adds to risk

When intensive care unit (ICU) patients are held in ED hallways, this situation poses a serious liability risk.

The ED physician has some liability to care for these tremendously ill patients, "and you are doing so in a unit that is not really designed for ICU patients," says Robert Shesser, MD, professor and chair of the Department of Emergency Medicine at George Washington University Medical Center in Washington, DC.

Even though the ED physician has admitted the patient to another physician, that physician isn't physically present to see the patient. Because the patient doesn't leave the ED, the ED physician has some legal responsibility to keep monitoring the patient and to intervene as appropriate. "To my mind, that is really the hospital's liability. The hospital should be indemnifying the ED physician group when they can't get patients to the ICU within a certain period of time," he says. However, that indemnification isn't happening, Shesser acknowledges.

More importantly, patients are put at risk because less than appropriate care is given in an ED hallway. "Even if the ICU physician comes down and rounds on the patient, the ED is not a substitute for an ICU," says Shesser. "And the ED nursing staff is having to worry about these critically ill patients, while still receiving patients by ambulance and so forth."

There are two immediate consequences of overcrowding related to the Emergency Medical Treatment and Labor Act (EMTALA), says Jeffrey Freeman, MD, clinical assistant professor in the Department of Emergency Medicine at University of Michigan Health System in Ann Arbor. If a patient is triaged, but suffers delays in care due to overcrowding, then it is possible that the delays could constitute an EMTALA violation for not providing care sufficient to stabilize the patient. In addition, EMTALA states the hospital must provide care "within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition."

"I don't believe that being overcrowded would fall under not having the staff and facilities available," says Freeman. "But there is increasing likelihood that the threat of EMTALA investigations will coerce hospitals into settling malpractice claims."