Another waiting room death to bring lawsuits?

One after the other, videotapes on primetime news showed a patient, Esmin Green, being ignored by ED staff as she lay dying on a waiting room floor in a Brooklyn psychiatric hospital after waiting almost 24 hours for a bed. What impact will this "horror story" case, and others like it, have on ED litigation?

This incident brings into sharp focus the tragic consequences that can occur when a patient, waiting for a bed to become available, is overlooked or, in this case, ignored, in a public psychiatric ED, says Joseph J. Feltes, JD, a shareholder at Buckingham, Doolittle & Burroughs in Canton, OH. However, Feltes doesn't think the case will "change the landscape of ED liability in terms of theories of recovery."

Patients who are "overlooked" in the ED have long been able to bring negligence claims, when delay beyond the standard of care proximately causes injury or death, Feltes explains. "Acute care hospitals and psychiatric hospitals, as a matter of quality care and risk management, must implement effective protocols to ensure that patients are timely screened and treated," says Feltes.

Suits likely if patients overlooked

Highly publicized incidents, including another recent one in which a North Carolina patient died after having been left unattended in a waiting room chair for 22 hours, increase the probability that patients and their families will file suit if they are overlooked or ignored in the ED, says Feltes.

"The lawsuit filed by Kirkland and Ellis and the American Civil Liberties Union in New York, arising out of the Esmin Green incident, doubtless will be a case plaintiff attorneys nationwide will follow closely," says Feltes.

Anyone who is familiar with the severe shortage of psychiatric beds in the United States will not be surprised by the Green case, according to Barbara E. Person, JD, an attorney at the Omaha, NE-based law firm Baird Holm. "Indeed, it would be nice if this case were to serve as a clarion call for all payer systems to improve the currently disfavorable reimbursement of mental health treatment," says Person. "The shortage of dedicated psychiatric facilities diverts acutely ill mental health patients to the emergency departments of general and academic hospitals."

Even hospitals with psychiatric units rely principally upon their ED physicians for assessment of mental health patients presenting to the ED, notes Person. "Standard of care is for the ED physician to call an on-call psychiatrist to consult on the plan of care and to provide admitting orders," she says "But it is rare for the ED physician to ask the psychiatrist to come to the ED to participate in the medical screening examination [MSE]."

Increased waiting times are bad for sick patients and can lead to serious, even lethal, delays, says Matthew J. Walsh, MD, associate professor in the Department of Emergency Medicine at the University of New Mexico School of Medicine in Albuquerque. "That being said, each ED is responsible to develop protocols for triage and re-triage of patients in the waiting area which address local needs," Walsh says.

Psychiatric patients may pose special risks due to the inability to provide detailed, valid information about their physical complaints and history, notes Walsh. "Best practices are always to have sufficient resources to appropriately evaluate every patient as they present, to establish their relative acuity, and to provide needed care in proper time frames," says Walsh. "This is difficult, and at times, close to impossible in many public facilities." But it should always be the goal for all general EDs, he says.