The trusted source for
healthcare information and
Ambulatory Care Quarterly
ED is hotbed for lawsuits; address risky conditions
Most claims result from what you didn’t do
What happens in your emergency department (ED) when a patient shows up complaining that he still has that terrible headache you sent him home with six hours ago? Do staff label him a whiner and send him back out the door with some Tylenol?
If so, you probably just created a lawsuit. You might as well call him a taxi and send him straight to a plaintiff’s attorney.
That is only one of the most common situations leading to ED malpractice cases. The very nature of the ED, with patients arriving with unknown conditions and staff pressed to act quickly, is a recipe for disaster, say legal experts. Malpractice lawsuits are almost certain to happen, but you can reduce your chance of being sued significantly by paying more attention to the top five issues that are likely to take you to court, they say.
The ED is the source for a disproportionate number of malpractice claims at most hospitals, with about 20% of all of the hospital’s claims originating there, says Diane M. Sixsmith, MD, MPH, FACEP, chairman of emergency medicine at New York Hospital Medical Center of Queens in Flushing.
In addition to her extensive ED experience, Sixsmith has been an expert witness and malpractice consultant for 25 years. She spoke on the topic at the recent meeting of the American Society for Healthcare Risk Management (ASHRM) in Nashville, TN, along with Andrew S. Kaufman, JD, a partner with Kaufman Borgeest & Ryan in New York City, a prominent law firm defending health care malpractice claims.
"You can’t make your ED litigation-proof," Sixsmith says. "But most EDs could make themselves less of a target."
Sixsmith and Kaufman point out that when patients sue after being treated in the ED, they often are motivated not so much by the actual care received but by how they felt they were treated personally.1 That is especially true after an adverse event.
Even if the clinical care actually was subpar in some way, patients will be more likely to forgive that error if they perceive the ED staff as caring and attentive. But in the typically overcrowded ED, personal niceties often become a lesser priority. That atmosphere puts you at more risk of being sued, Sixsmith adds, but it also may increase the risk of actually providing substandard care.
"My theory is that the physician/patient and nurse/patient relationship is very much a part of health care. A bad relationship actually interferes with care." For example, not getting a good history or not talking to the patient enough to get good information affects the actual care, not just the perception of care, Sixsmith says. "If you’re unpleasant with the patient, the patient won’t be forthcoming with the information you need to provide optimal care," she explains.
Because ED physicians and staff start at a distinct disadvantage when it comes to avoiding liability, Kaufman says it is important to concentrate on those patients and situations that put you most at risk. For example, 90% of ED malpractice claims involve discharged patients, not those who were admitted for further treatment, he says.
Take action: Just do it
Sixsmith agrees and says most ED malpractice claims stem from what physicians and staff didn’t do, not the treatment they provided. Even though Sixsmith acknowledges that emergency physicians and nurses should not do unnecessary tests and procedures, she does recommend that "action is better than no action. My mantra in the ED is, if you think of it, do it.’"
When deciding where to focus your risk-reduction efforts, Sixsmith and Kaufman point to these conditions as the most likely to lead to malpractice lawsuits in the ED:
1. chest pain;
3. abdominal pain;
4. head injury;
Those conditions are the most risky because they can present in difficult ways, and it is easy for busy ED staff to overlook crucial signs.
Reducing your liability risk requires a concerted effort, Sixsmith says. It’s not good enough to just urge everyone to practice good medicine and then hope for the best. You must take very specific steps that address the known hazards.
Sixsmith and Kaufman suggest taking these actions:
• Focus more on customer service.
Though this might seem like an unreasonable demand for overworked staff, it is crucial if you are to avoid lawsuits. When people walk away unhappy, they are far more likely to sue over any perceived wrongdoing in the ED.
• Make sure ED physicians have the authority to admit patients to the hospital when they see fit.
Lawsuits occur when the ED physician can’t convince the doctor in another unit, a hospitalist, or the patient’s private physician to admit and the patient is discharged. In many cases, the record shows that the emergency physician thought the patient should be admitted but then discharged him or her. Work with hospital administrators and medical staff leadership to give ED physicians the authority to admit a patient in such situations, Kaufman says.
• Improve change-of-shift continuity.
Many problems arise when patients are handed off from one physician or nurse to another at the change of shift, he says. Kaufman recommends a policy requiring the incoming shift to evaluate the patient as a new patient.
Never allow staff or physicians to rely on a general statement of the patient’s condition from the outgoing shift. Patients are at great risk if the incoming shift assumes the patient is stable because the outgoing shift didn’t say otherwise or the patient’s condition changed.
• Examine the patient twice as carefully on the second visit.
ED staff always must pull the patient’s chart from the previous visit to review it for condition insights, oversights, and in light of the patient’s current condition, Kaufman says.
Sixsmith says a return visit to the ED is a pivotal moment, in which you can protect the patient and save yourself or make things much worse. When a patient returns to the ED, "he’s giving you a chance to right your wrong," she says. "And juries have no sympathy when you turn them out on the street again."
• Evaluate the patient thoroughly even if you consult the patient’s primary care physician.
The malpractice liability rests with the ED and hospital while the person is your patient, Kaufman says. That doesn’t change because of anything the primary care physician says over the phone.
"Either the primary care physician comes in and takes responsibility for the patient, or you evaluate that patient as if he had no doctor at all," he says. "You can’t forego anything just because you talked to the patient’s doctor."
• Get the patient’s family involved with decisions to leave against medical advice.
"The family [members] will be the ones suing you if he dies," Kaufman adds. "They need to know that you tried your best to get him to stay for treatment."
Enlist the family to try to persuade the patient to stay for treatment, he advises. Explain to the family that the patient needs to stay, and ask for their help. Even if they are unsuccessful in preventing the departure, they will see for themselves that you did your best to convince the patient and did not just let him or her leave because you didn’t care.
• Provide more specific discharge instructions about when to return.
Discharge instructions often don’t say anything about the patient returning because symptoms remain the same. For some serious conditions requiring emergency care, the symptoms may remain exactly the same until the patient suddenly dies, Kaufman says.
He suggests that discharge forms include two boxes for the physician to check, depending on the circumstances. One can say, "Return to ED if you feel worse," and the other can say, "Return to ED if you don’t feel better," Kaufman adds.
"I’ve had cases where the patient was discharged and had a bad outcome and then said he didn’t return to the ED because they didn’t tell him to," he notes. "The doctor told him to return if he felt worse, but the patient says, I didn’t feel worse. I just didn’t feel better.’"