Hospitals Could Face Legal Exposure if EPs Are Not Board-Certified
In 2005, there were about 22,000 emergency medicine (EM) board-certified EPs in the United States.1 However, investigators estimated 40,030 EPs would be needed to staff all 4,828 EDs. For years, there was not much additional research in this area. Recently, a group of investigators decided to conduct another analysis and update the data.2
“This felt especially important in the setting of ongoing debate surrounding the EM board-certified EP workforce and increased use of advanced practice providers in the ED,” says Carson E. Clay, the lead author of the most recent analysis and a research affiliate at the Emergency Medicine Network at Massachusetts General Hospital.
Clay and colleagues found improvements over the 2005 data. In 2017, there were 40,716 EM board-certified EPs, fulfilling 77% of the estimated national demand. “However, breaking the data down regionally, we found overwhelming disparities between rural and urban states,” Clay says.
Many hospitals proudly advertise the fact its EPs are board-certified. What if a plaintiff in a malpractice lawsuit was seen by an EP who was not board-certified? “It demonstrates misleading or deceitful advertising. That can be a basis to argue the hospital lacks institutional honesty,” says David Sumner, JD, a Tucson, AZ, medical negligence specialist with a multistate trial practice.
Consumer protection statutes that protect people from false advertising claims could form a basis for an additional claim. Even if the false advertising statute does not give the patient the right to a direct cause of action if they relied on the ad, the hospital still can face potential civil penalties. “However, when patients are given a right to sue under the statute, it is usually an additive cause of action to the medical negligence claim,” Sumner explains.
False advertising claims might require proof of reliance on the representations in the ad. Plaintiffs would need to testify that they chose to go to the ED because all EPs were board-certified.
In one malpractice claim, the health system’s website stating that all its physicians were board-certified became the central focus. The plaintiff testified she chose the health system specifically for that reason. The health system defined board certification as the physician possessing certification through the American Board of Medical Specialties.
The cerebrovascular surgeon held certification in neurosurgery, but only from Japanese certifying agencies. The consumer protection statute was pleaded as an additional claim. “The false advertising was highly prejudicial to the university in defending the claim,” Sumner reports.
The settlement resolution required the health system to correct its website to eliminate any misrepresenting comments. The same kind of issue could come up in ED malpractice litigation. “Such a representation can result in the hospital assuming the duty or obligation to provide ER physician care consistent with what would be expected from a board-certified EM physician,” Sumner says.
The legal standard of care does not require all EDs to be staffed exclusively by EM board-certified physicians. “Many communities cannot staff their ERs with only EM board-certified physicians, even if that should be an aspirational goal for all centers,” Sumner notes.
If a hospital can show that not enough EM-certified physicians were available to staff their ED, it would be difficult to allege a standard of care violation because of non-EM-boarded physicians. If ED physicians are not hospital employees, but are instead provided to the hospital via large national staffing groups, it makes it easier to argue the ED could have had all EM board-certified physicians. Generally, says Sumner, “there is a wide divergence of the quality of ER care being provided at major academic centers vs. the general ER care provided in the communities nationwide.”
Some academic centers mandate EM board certification. Not many community hospitals do so. “The non-EM-boarded physicians are not required to meet initial or periodic board educational or CME requirements,” Sumner says.
Sumner has seen many malpractice cases in which non-EM-boarded EPs are named. In those cases, the patients were mismanaged at small community EDs and then had to be transferred to a higher-acuity center. “I have found it rare to have an EM board-certified provider in my ER cases,” Sumner says.
In most cases handled by Sumner, the EP defendant was a family practice- or internal medicine-trained physician without a specific EM residency in their background. Regardless, lack of board certification in EM diminishes the EP’s credibility. “Skilled plaintiffs’ lawyers know how to read a CV and know when credibility-enhancing training or credentials are missing,” Sumner says.
Without the requirement to keep up with maintenance of certification requirements or CME specifically in EM, plaintiffs could explain why the care in the case did not meet expected standards of care. To wit: “Why did this happen? Because the physician was not suitably trained, nor did she remain current within the specialty through participation in mandatory maintenance of board certification requirements.”
“That is pretty easy for any jury to understand,” Sumner says.
- Camargo CA Jr, Ginde AA, Singer AH, et al. Assessment of emergency physician workforce needs in the United States, 2005. Acad Emerg Med 2008;15:1317-1320.
- Clay CE, Sullivan AF, Bennett CL, et al. Supply and demand of emergency medicine board-certified emergency physicians by U.S. state, 2017. Acad Emerg Med 2021;28:98-106.
In 2005, there were about 22,000 emergency medicine board-certified emergency physicians in the United States. However, investigators estimated 40,030 emergency physicians would be needed to staff all 4,828 EDs. For years, there was not much additional research in this area. Recently, a group of investigators decided to conduct another analysis and update the data.
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