Lawsuits may arise from ED 'boarding' practice

There's proof it harms patients

(This story is Part 1 of a two-part series on liability risks of boarding admitted patients in the ED. This month, we'll report on liability risks of holding admitted patients in ED hallways. Next month, we'll examine the legal risks if patients get unequal or inadequate care in the ED, as opposed to what they would have gotten on the inpatient floor).

An emergency physician is managing an acute myocardial infarction, arranging for a patient transfer, sewing up a laceration, and putting in a chest tube, with 20 people still waiting to be seen in the waiting room. This is probably not the best person to provide routine inpatient care for multiple patients being held in the ED, says William Sullivan, DO, director of emergency services at St. Mary's Hospital in Streator, IL.

"Chances are that it's been a while since an emergency physician has ordered a colon preparation prior to a patient's colonoscopy, or done an in-depth work up to determine the cause of a patient's anemia," Sullivan says. "Those just aren't things we routinely do. Having admitting physicians handle admitted patients is better for patient care."

Holding admitted patients in EDs was always known to be bad for patient flow, but there is a growing body of research showing that it also harms patients.1-4 There's no question that the risk of a poor outcome increases when patients board for long periods, particularly when those patients are critically ill, according to Jesse M. Pines, MD, MBA, assistant professor of emergency medicine and epidemiology at the Hospital of the University of Pennsylvania in Philadelphia.

"This certainly increases the legal risk to the physicians caring for these patients," says Pines. "In many hospitals, it is the ED physicians and nurses caring for these boarders, so the risk falls squarely with them. It may be impossible to avoid getting roped into lawsuits if there is an error attributed to boarding."

Pines says that he doesn't know of any lawsuits that have involved ED boarding specifically. "But when a bad outcome does occur, I'm sure that attorneys will scour the chart to see what happened while the patient was boarding, if there is any link," says Pines. "This is especially true now that there is clear evidence that boarding is hurting people."

ED leadership must be patient advocates, says Robert Broida, MD, FACEP, chief operating officer of Physicians Specialty Limited Risk Retention Group, the professional liability insurer for Canton, OH-based Emergency Medicine Physicians. His recommendations:

• Consistently and respectfully remind administration and medical staff leadership of the responsibility of the hospital, and ultimately, the hospital board, to ensure reliable, quality care under its roof.

• Provide hospital leadership with the report on boarding from the American College of Emergency Physicians' (ACEP) Task Force, titled Emergency Department Crowding: High-Impact Solutions. (To access the report, go to www.acep.org. Under "Practice Resources," click on "Practice Resources," and under "Issues by Category," click on "Boarding and Crowding." Scroll down to "2008 Boarding Task Force Report.")

• Use examples, especially near-misses, from your own hospital to emphasize the risks involved.

Crowding caused by boarding harms patients

"There is plenty of research that demonstrates emergency department crowding due to boarding is responsible for poor outcomes," says Tom Scaletta, MD, president of Emergency Excellence, a Chicago-based organization that improves patient care and efficiency in the ED while controlling costs. Scaletta is also medical director of a high-volume community hospital in a Chicago suburb.

Scaletta says that most lawsuits will involve delayed diagnoses in time-sensitive problems such as myocardial infarction, ischemic stroke, peripheral vascular disease/ischemia, intracranial bleeding, and hemorrhagic shock. It's likely that attorneys will target ED physicians if an adverse outcome occurs and a patient was boarded, says Scaletta. "In the Chicago area, we are still reeling from a highly unusual move by a local coroner who declared a patient's death in an ED waiting room was a homicide," he says. "She presented with chest pain and was not brought into the ED immediately because of crowding."

In the event of a lawsuit, Scaletta recommends showing the jury a log of patients seen that day, with names redacted, and the number of ED physicians and midlevel providers that were working. "There are published statements published by professional societies that dictate reasonable staffing levels," he says. For instance, of the American Academy of Emergency Medicine says that the rate of patient influx should not exceed 2.5 patients per physician per hour on average. (To access this position statement, go to www.aaem.org. Click on "AAEM Position Statements," and scroll down to "Position Statement on Physician-to-Patient ED Staffing Ratios.")

Scaletta believes this is safely increased by 50% (to 3.75) when a physician works as a team with a midlevel provider. "Emergency physicians need to have due process so that they can speak up about problems like under-staffing and not get fired, which has happened," adds Scaletta. Your documentation needs to be "factual and not accusatory," says Scaletta. "I also think emergency physicians need to be aware of the waiting room load and call in reinforcements when the number/acuity is high," he says. "Hospitals need to have a crowding action plan, akin to internal disaster activation."

In Scaletta's view, the chief cause of ED crowding is the failure of inpatient hospital services to take responsibility for admitted patients. This problem could be resolved, he says, by hospital leaders facilitating the success of inpatient hospital services with flexible and ample staffing, and regulatory agencies mandating the timely movement of admitted patients to inpatient areas. "Unfortunately, hospitals are being severely stripped financially, and the business of inpatient medicine is not profitable. From a fiscal perspective, hospitals stay afloat from their outpatient services," says Scaletta. "The ED is a hospital's largest bridge between inpatient and outpatient medicine."

The ED is accustomed to handling volume fluxes, but when the inpatient areas cannot reciprocate, crowding occurs. "Even though only 20% of ED cases are admitted, admissions that become boarders block beds for the 80% of our cases that would otherwise be seen, treated, and sent home," says Scaletta. "The potential for gridlock is great and very dangerous."

Board patients on floors instead

For damages to result, the patient's long wait in an ED hallway has to be tied to some consequence, notes Peter Viccellio, MD, FACEP, vice chairman of the Department of Emergency Medicine at State University of New York at Stony Brook.

But what about the possibility of a jury being inflamed to hear that a patient was waiting for 20 hours in the hallway of an ED? "It should anger them, but the anger is misdirected. It's not the physician taking care of the patient, it's the fault of the system," says Viccellio. "But part of the problem is throwing our hands in the air and say we can't do any better, which is not true. We really cannot accept this terrible care that is provided as part of the status quo."

"Why do the patients back up in the ED? In part, it's because hospitals fail to do what they can to fix this," says Viccellio. "The ED is overwhelmed with admissions that should not be there. And you know what? They don't need to be there," he says.

If the ED is "filled to the gills" with patients, and you now have 20 additional patients to distribute, the logical answer is to put two of those patients on each unit. "But what's the current answer in many hospitals? To put all 20 in one place," says Viccellio.

He points to his own institution's practice, which sends the admitted patients to board on floor hallways when the ED is at full capacity. "It has dramatically enhanced the care of our patients. This is far more important than the consequence of that: decreasing our liability," says Viccellio. "And in terms of putting patients on the floors, we have done an exhaustive search for patient safety issues, and we can't find any."

What most institutions are asking their EDs to do is care for all the patients that come in, and staffing for those patients, but in effect, saying, 'By the way, you may have an extra 30 admitted patients that you have to care for,' says Viccellio. "What we are asking of the inpatient units is that, during times of high capacity, a nursing unit that takes care of 30 patients will care for 31 or 32," he says. "Patients are much more comfortable upstairs than downstairs. And they don't stay in the hallway for long, because magically a bed opens up once they're up there."

Anyone on a jury has likely gone to an ED and waited for hours to be seen, notes Viccellio. "And to most of them, it's not apparent why," he says. "I think there is a very legitimate moral and legal question we need to ask: Does the fact that 'that's the way things are,' make them OK? I don't think you can fault somebody if it costs $100 million to do something. But if you can just change the way people work, at little to no cost, and it has a profound impact on the patient, why not do it?"

Juries won't be sympathetic

Pines thinks juries will be less likely to be sympathetic to hospitals that commonly board admitted patients in the ED, given the recent literature that shows that boarding actually might be profitable to hospitals.

"Hospitals are wary of cancelling more profitable elective surgeries even when the ED is unsafe," he says. "As the public comes to realize this, juries will certainly be less understanding."

ED staff are likely to be sued for medical errors when patients are boarding, Pines says. "Because there is a higher adverse event rate, this puts ED staff at great risk from a legal perspective," he says.

But regardless of the risk of getting sued, hospitals should stop the practice of boarding because it hurts patients and is not the way anyone wants to be treated, says Pines. "Imagine lying on a foam stretcher in an ED hallway for 24 hours when you're sick. It's inhumane," he says. "If hospitals choose to continue this practice because of greater economic rewards from maximizing elective admissions, it may end up backfiring in the end, because hospitals are more likely to get hit with a huge lawsuit that results from boarding."

ED physicians should advocate on behalf of their patients and urge their hospital administrators to end boarding, says Pines. "But the problem is that there are very strong forces in hospitals that promote boarding, up to the level of the CEO," he says. Because fixing boarding is likely seen as having a negative impact on profits in the short term by CEOs, it's unlikely that the practice will change unless the government or The Joint Commission steps in and puts an end to boarding.

"The problem is that the systematic dysfunction from ED boarding is created by hospital managers, not ED physicians or nurses, says Pines. "But it may be difficult for jurors to differentiate the two."

References

1. Chalfin DB, Trzeciak S, Likourezos A, et al. Impact of delayed transfer of critically ill patients from the emergency department to the intensive care unit. Crit Care Med 2007; 35:1,477-1,483.

2. Liu SW, Thomas SH, Gordon JA, et al. Frequency of adverse events and errors among patients boarding in the emergency department. Acad Emerg Med 2005; 12:49-50.

3. Pines JM, Hollander JE. Association between cardiovascular complications and ED crowding. Presented at the American College of Emergency Physicians 2007 Scientific Assembly. Seattle; October 2007.

4. Richardson DB. Increase in patient mortality at 10 days associated with emergency department overcrowding. Med J Aust 2006; 184:213-216.