EDs Get Added Protection against Malpractice Suits

Will defensive medicine be a thing of the past?

In a growing number of states, including Florida, Georgia, Texas and South Carolina, Utah, Arizona, Michigan, Minnesota, and North Carolina, legislation is being introduced to give emergency department (ED) physicians added protections against malpractice lawsuits.

Is this good news for EDs? "Absolutely," says Wayne Guerra, MD, MBA, vice president of Serio Physician Management, a Littleton, CO-based company that provides management services to hospital-based physicians and hospitals.

"Emergency physicians do not have an established relationship with many of their patients, and as a result are at risk for increased malpractice suits," says Guerra. "Studies have shown that the fear of malpractice litigation increases the use of diagnostic testing and admission of low-risk patients with chest pain.1 Protecting emergency physicians from frivolous lawsuits will help reduce this fear and increase the use of evidence-based medicine."

Guerra says that emergency medicine physicians should not be shielded from mistakes, but do need to be protected from lawsuits generated from a bad outcome where the care was appropriate.

Fewer Unnecessary Tests

Would having increased malpractice protection enable emergency physicians to stop practicing defensive medicine and instead, work up patients according to the clinical situation and evidence-based medicine? Possibly so. "Currently, the decision on whether a medical mistake is made is left up to a jury, who many times does not understand the complexities of the case," says Guerra. "This causes many physicians to order unnecessary tests to rule out very unlikely diseases."

Guerra says that increased malpractice protection would increase the quality of care, because it would encourage compliance with best practices. "Safe harbor from medical malpractice would increase the use of best practice standards, if the doctors knew they could not be sued if they followed the standard," says Guerra.

Guerra notes that of all computed tomography (CT) scans done, which number 20 million a year in adults and 1 million in children, a third do not meet medical need criteria. "These scans are not without risk, and are believed to result in 1.5% to 2% of all cancers in the United States," he says.2 "Once ED physicians trust the new protection laws, they would be more willing to forgo potentially harmful unnecessary imaging studies."

There is no doubt that fear of lawsuits drives the decisions made by emergency physicians to some degree, says Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and co-director of University Hospitals Geauga Medical Center's Chest Pain Center in Chardon, OH. "It takes only one bad experience with the medical legal system, whether justified or not, to make an indelible mark on the practice habits of physicians," he says. "But this is not necessarily a negative situation."

How fear of lawsuits translates to daily practice depends on numerous factors, says Garlisi. These include the particular physician's tolerance for risk, the type of ED, support provided by hospital administration, presence or absence of consulting physicians, whether a follow-up physician is willing to see the patient, and the chief complaint.

More Access to Specialists

Ohio's legislation would give qualified civil immunity to ED physicians, who could be sued only if "willful or wanton" misconduct occurred. According to William J. Naber, MD, FACEP, an assistant professor in the Department of Emergency Medicine at the University of Cincinnati's College of Medicine, this could have a positive impact on crowding, patient boarding and lack of on-call specialists.

Naber notes that ED physicians provide high-quality care without regard to the patient's insurance status or ability to pay, and need on-call specialists to do so. "Frequently, the on-call specialists will stop taking call from emergency departments," says Naber. "I can't say that I blame them. They are assuming increased liability and decreased or no reimbursement for the services they provide to emergency department patients. Why would any physician choose to practice in this environment?"

Naber says legislation like the Ohio bill, which states its purpose is "to provide appropriately limited liability for these emergency medical providers," will result in more on-call specialists, better access to specialty care, and improved overall quality of emergency care, because clinicians providing on-call care to emergency patients would be included in the protection.

"This is great news for emergency medicine. Emergency physicians provide care at all hours of the day and night to some of the sickest patients, often with little or no medical history. Ironically, the sicker patients are, the more you need that critical medical information, but are less likely able to obtain it."

Naber says that the limitation on liability is "clearly appropriate when providing EMTALA-mandated care in this difficult environment."

"People who feel that limited liability will decrease the incentive for quality improvement obviously don't practice medicine in this environment. They don't understand that lawsuit fear doesn't drive or determine the quality of care," says Naber. "Lawsuit fear clearly correlates, however, with increased cost of care."

End to frivolous suits?

The definition of "willful or wanton misconduct" can and will be argued, says Garlisi. He gives the example of an emergency physician who evaluates a 43-year-old male with chest pain. The patient has "nonspecific" EKG changes, and chest wall tenderness. The physician concludes that the chest pain is musculoskeletal and discharges the patient home. The patient dies nine hours later from myocardial infarction.

Would this error in diagnosis and disposition be considered "wanton and willful," or did the physician truly believe the chest pain was benign and make a decision based upon careful consideration of events, physical findings and ancillary results? "Of course, this would be the subject of some debate," says Garlisi. The same question could be asked, he says, if an emergency physician does not diagnose a deadly dissecting aortic aneurysm, or pulmonary embolism if the signs and symptoms are suggestive, but not glaringly obvious.

However, Garlisi says that it is likely that emergency physicians would be excused from misdiagnosis, even with serious negative outcomes, as long as he or she followed some reasonable course of action and the intent was genuine and in the best interest of the patient.

"For the emergency physician who has suffered through months of depositions and discussions with malpractice defense attorneys regarding trivial or frivolous matters, as in my case recently when I was accused of kidnapping, assault and battery because I ordered a medical evaluation on an elderly patient with chronic dementia and acute agitation, this is great news indeed," says Garlisi.

After one year, the case was finally dismissed. "While the right decision was made, and the case dropped, very few people would realize the extent to which such a case adds unnecessary stress, and emotional turmoil and monumental time waste for the physician involved," says Garlisi.

Companies which hire and pay emergency physicians are likely to benefit. "Over the past two decades, large emergency staffing companies have all but taken over the business of emergency medicine," Garlisi says. "Malpractice insurance premiums are major expenses, and reduction of lawsuits could help keep insurance costs from increasing."

Bad impact on quality?

While Naber asserts that fear of lawsuits does not drive or determine quality of care, Garlisi is of the opinion that there might be cause for some concern that limited liability might have a negative impact on quality and patient safety.

"Even in healthy economic circumstances, hospitals operate on thin margins," he says. "Administrators are forced to focus their resources on the vital departments and services which generate the bulk of revenue."

Unfortunately, EDs are not a high priority for many hospitals. "For many years, emergency physicians have raised concerns about dysfunctional processes, antiquated work environments, substandard staffing, inability to move patients from the ED up to the inpatient units, inconsistent services from lab and radiology, and an inability to 'ramp up' performance to meet demands during extremely busy shifts," says Garlisi. "Yet, for all too many emergency departments, not much has changed."

Garlisi raises these questions: With less threat of lawsuits, will administrators reduce ED staffing to cut costs? Will ancillary service availability be reduced or eliminated after midnight? Will other cost-cutting measures be implemented which could affect patient safety? What incentives will there be for hospitals to reduce ED overcrowding or not have patients sit in the waiting area for eight hours to be seen by a physician?

"Staffing patterns no doubt will be affected," says Garlisi. "Administrators could look at patient volume — 'He has only seen 34 patients in his shift' — and scoff at the idea that the emergency physician needs additional staffing to handle the load of complex, seriously ill patients. The administrators do not take into account that those 34 patients generated 14 hospital admissions and / or transfers."

The bottom line, says Garlisi, is that "the emergency physician 'worker bee' in the trenches, whose professional livelihood hangs in the balance, has little or no power to affect policy change which would improve patient safety and reduce medical legal risk to the physician."

As for how the new protections will impact individual ED physicians, Garlisi says that those who are engaged, thorough, and conscientious (and therefore do not generally work in fear of being sued) will probably continue to practice emergency medicine in the same manner. However, "physicians who are 'minimizers' with regard to patient evaluations and those who look for shortcuts in patient care may feel justified in their approach," he says.


1. Katz DA, Williams GC, Brown RL, et al. Emergency physicians' fear of malpractice in evaluating patients with possible acute cardiac ischemia. Ann Emerg Med 2005;46:525-533.

2. Brenner DJ, Hall EJ. Computed tomography –An increasing source of radiation exposure. N Eng J Med 2007;357:2277-2284.


For more information, contact:

• Andrew Garlisi, MD, MPH, MBA, VAQSF, University Hospitals Geauga Medical Center, Chardon, OH. Phone: (330) 656-9304. E-mail: garlisi@adelphia.net.

• Wayne Guerra, MD, MBA, Vice President, Serio Physician Management LLC, Littleton, CO. Phone: (303) 759-0854. E-mail: wayneguerra@comcast.net.

• William J. Naber, MD, FACEP, Assistant Professor, Department of Emergency Medicine, University of Cincinnati. Phone: (513) 600-4749. E-mail: naberwj@uc.edu.