Consider these arguments to defend docs, department

When you are faced with more patients than resources, and a lawsuit results, one possible defense argument that would encompass the hospital and the emergency physician is that everyone did everything that could be reasonably expected under bad circumstances.

"In other words, there was more demand than supply," says Robert Shesser, MD, professor and chair of the Department of Emergency Medicine at George Washington University Medical Center in Washington, DC. "But in the event that this defense doesn't prevail, the ED physician and their liability carrier might have to participate in settlements and judgments, for things that are really not their fault."

In fact, plaintiff's attorneys may themselves use the strategy of blaming errors on overcrowding, arguing that the state of the ED is evidence of lack of adequate care resources. When Frank Peacock, MD, vice chief of emergency medicine at The Cleveland Clinic Foundation Peacock, was sued by an ED patient, the plaintiff's attorney brought up the issue of crowding. "The best part was they didn't know what they were talking about. We pulled up the numbers and said, 'It wasn't too busy. Your patient was seen in six minutes,'" says Peacock. Still, the incident reflects the fact that crowding is coming up more often in ED lawsuits, something that managers will ignore at their own peril.

"Hospitals become targets when they don't do their job. The idea that the ED can be ignored is going to get hospitals in trouble," says Peacock. "The ED has become the barometer for the health of the hospital. The longer ED patients wait, the higher the death rate for some kinds of patients, and that means liability for a hospital."

Because it's impossible to recall if the ED was particularly crowded on a given day, use electronic tracking systems, although this won't fully reflect staffing and space considerations, or stamp ED charts with a code signifying that the waiting room was crowded at that particular time, suggests Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY). "However, in some institutions, all charts every day would be stamped," she says.