Is 'the ED was just too crowded' ever a defense?

Strategy is likely to backfire

Crowding is increasingly becoming a factor in litigation involving ED care and is putting nurses and physicians at increased risk for being named in a lawsuit.

"I expect that there will be more lawsuits involving adverse outcomes in a crowded situation," says Robert Shesser, MD, professor and chair of the Department of Emergency Medicine at George Washington University Medical Center in Washington, DC. "Because the hospital system is so broken, your exposure to medical legal risk goes up."

There is no question that patient outcomes are adversely affected by delays in assessment and treatment caused by ED overcrowding, according to Jeffrey Freeman, MD, clinical assistant professor in the Department of Emergency Medicine at University of Michigan Health System in Ann Arbor. "Overcrowding directly causes errors due to understaffing relative to workload," Freeman says. "It also causes patient dissatisfaction, which leads to increased perception of negligence if damages occur."

Also, long wait times increase the number of patients who leave prior to completing their emergency evaluation. This is a group of patients at high risk for bad outcomes, says Freeman.

When inpatients are boarded in the ED, significant and sometimes fatal delays can occur, warns Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY). Patients often are on complicated inpatient medical protocols that are unfamiliar to the ED nurses, which may lead to errors. "It is actually remarkable how rare those errors are. It is a testament to the nurses who staff the ED," says Schneider.

Freeman points to an ominous sign: Attorneys are beginning to advertise for clients to call them if ED wait times are long and are publishing articles about long ED wait times on their web sites. "It is inevitable that overcrowding will lead directly to bad outcomes and increasing medical malpractice claims," he says.

Juries probably won't sympathize

Jurors are unlikely to look closely at the underlying issues involving ED crowding, and instead, usually are focused on the individual who is suing.

"After Hurricane Katrina, we learned a lot about how the public views care in a disaster," says Schneider. "While the medical profession understood the decisions made, such as euthanasia during the disaster, the public clearly did not. If they don't understand that standard of care is compromised in a disaster, how would they understand it in a crowded ED, even if we are in a disaster mode each and every day?"

There is nothing stopping a defense attorney from pointing out that a waiting room was flooded with critically ill patients, to explain why a patient's care was delayed. But would this get the ED physician off the hook, or make things worse? "In my opinion, most juries would not consider overcrowding sympathetically," says Freeman. "They would likely blame the inefficiencies back on the doctor and the system for not correcting the problem before the event occurred, despite the inability of either to make a significant impact in most cases."

Even if a particular nurse or physician was seen as sympathetic and not liable for a patient's adverse outcome because the ED was simply too crowded, this would likely be offset by the same jury placing an equal blame on the facility for not coping with the problem before the event, says Freeman. "I wouldn't recommend that a defense attorney try this appeal. It reminds me of asking a judge to forgive a traffic violation because of icy road conditions," says Freeman. "Their response is inevitably that a driver is responsible for adjusting his operations to meet the conditions, even if they are outside of his control."

It may be true that the number of patients in your ED was a factor in the plaintiff's outcome, but it's not necessarily information you should share with a jury. Frank Peacock, MD, vice chief of emergency medicine at The Cleveland Clinic Foundation, says, "I'm not sure it is a good legal strategy to say, 'We saw 50 people that day, and I can only see three at a time.' I think that hurts your case rather than helps it. I don't know anybody who has successfully used that as a defense."

What the jury will hear is that the ED doctor was too busy to do his job and that the patient paid for it. "You can say to the jury, 'I had three people dying at the same time and I had to make some decisions, and this guy got a little bit ignored.' But I don't think you really want to admit that on the stand, even if it was a fact," says Peacock.