Could giving 'unequal' care to inpatients get your ED sued?

Differences in care revealed during lawsuits

(This story concludes a two-part series on liability risks of boarding admitted patients in the ED. This month, we report on the problem of EDs providing an unequal level of care compared to what patients would have gotten on inpatient units. Last month, ED Legal Letter covered liability risks of holding admitted patients in ED hallways.)

Admitted patients held in EDs are required by The Joint Commission to receive the same level of care as they would get on inpatient units. A jury hearing about a patient's bad outcome would presumably expect this as well. But what if this is just not realistic for an understaffed, overcrowded ED?

It would be difficult for a plaintiff's lawyer to prove that the care provided during the time the patient spent boarding in the ED was inferior across the board, according to Jesse M. Pines, MD, MBA, MSCE, assistant professor of emergency medicine and epidemiology at the Hospital of the University of Pennsylvania in Philadelphia.

However, if a medical error occurs while a patient is boarding, attorneys may look to how the hospital systematically treats boarders, says Pines. For example, if a medication error occurs while a patient is boarding and the order entry system is different in the ED and on hospital floors, attorneys might focus on the difference.

Despite the Joint Commission requirements, many hospitals lack policies to ensure that boarders receive the same level of care, such as having inpatient physicians care for their own patients in the ED. "The problem is that most hospitals still require emergency nurses to care for the admitted patients," says Pines. "This can put both the boarders themselves and the other patients waiting to be seen at risk."

Also, even when inpatient physicians care for boarders, emergency physicians still have the ultimate responsibility for patients who are physically in the ED. "From both a patient safety and legal perspective, this is high-risk," says Pines. "If a patient becomes unstable and emergency physicians need to step in to care for a critically ill patient who has been admitted for hours, lawyers may place the blame on emergency physicians for what was really an inpatient complication."

Several recent publications have demonstrated that boarding is dangerous and that the care patients receive while boarding is inferior in many hospitals.1-4

"When adverse boarding outcomes do occur, lawyers will point directly to the evidence in the literature and use it against hospitals and emergency physicians," says Pines. "Unless something is done by the Joint Commission to step in and prohibit hospitals from the practice of boarding, this problem is only going to get worse."

Inpatient care should be the same wherever the patient is located in the hospital, says Robert Broida, MD, FACEP, COO of Physicians Specialty Limited, Risk Retention Group in Canton, OH. "Patients on a gurney in the ED hallway do not receive the same care as those on the inpatient unit. To the extent that the patient is harmed by this, the hospital is at risk."

A plaintiff's attorney could also point to differences in policy. "Hospitals like to write volumes and volumes of policy. And in the setting of boarding, these policies become impossible to comply with," says Peter Viccellio, MD, FACEP, vice chairman of the department of emergency medicine at the State University of New York at Stony Brook. "Also, as the staff is stretched thinner and thinner, documentation suffers. So adequate care might be delivered, but not documented."

If a jury hears that a patient didn't get the same care he or she would have on the inpatient floor, they are likely to blame the ED physician being sued, says Viccellio. "We don't have time to document what we do, and the context in a courtroom doesn't take into account what was going on with others," he says. "Juries are not sympathetic to 'the ED was too crowded.'"

For nurses, it's 'unrealistic'

With staffing levels cut to the bare minimum, Broida says is unrealistic to expect the ED nurses to provide comprehensive "floor nursing" care to boarders on top of their already large ED patient load. "The first priority for ED nurses are the ED patients," says Broida. "Admitted patients boarded in the ED hallway may experience medication errors, delays in proper admission assessment, lack of privacy, increased risk of falling and other potential problems."

The burden of holding patients in EDs is "much more on nursing than anyone else," says Viccellio. "It's not a matter of 'do you feel like it's easy or difficult? But 'Do you think it's doable?' Nurses feel like they are failures because they can't do what they need to do. If you have an ED nurse taking care of six admissions plus eight active ED patients, it's not a mathematically doable job."

It is not possible for emergency nurses to deliver the care that admitted patients require for two reasons, 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.

"First, they are not floor nurses and definitely not specialty floor nurses," he says. "Second, emergency nurses have a full waiting room to contend with. Waiting patients need to be screened for life threats and stabilized. This is always a priority over most floor cases."

There is a significant liability risk if ED staff are not providing the same level of care, expertise and documentation as inpatient staff, according to Broida. "It would be difficult to convince a jury that the patient on a gurney in the ED hallway receives the same care as those on the inpatient unit," he says.

Broida says that once a patient is admitted, their care should be provided by the inpatient staff, not the ED staff. Hospitals should float an inpatient nurse down to the ED to care for the boarders, or place the boarder in the inpatient unit hallway to await a bed.

Some hospitals have "admission nurses" come down to the ED for patient intake, while others send ICU or floor nurses down to the ED to care for boarded inpatients. "In either scenario, the patient will receive 'typical' inpatient care from a designated inpatient nurse," says Broida. "Also, the ED nurses will not be diverted to care for inpatients and will be able to concentrate on their required ED duties."


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.


For more information, contact:

• Robert Broida, MD, FACEP, Chief Operating Officer, Physicians Specialty Limited, Risk Retention Group, Canton, OH. Phone: (330) 493-4443, Ext. 1307. E-mail:

• Jesse M. Pines, MD, MBA, MCSE, Department of Emergency Medicine, University of Pennsylvania, Philadelphia. Phone: (215) 662-4050. E-mail:

• Tom Scaletta, MD, FAAEM, President, Emergency Excellence, Chicago. Phone: (877) 700-3639. E-mail: Web:

• Peter Viccellio, MD, FACEP, Vice Chairman, Department of Emergency Medicine, School of Medicine, Health Sciences Center, State University of New York at Stony Brook. Phone: (631) 444-3880. Fax: (631) 444-3919. E-mail: