Does Posting Wait Times Impact Legal Risks for EDs?

Response to online 'wait clocks' generally good, but drawbacks possible

Some EDs are now offering online updates on current wait times, with the stated expectation that patients will use this information to make better decisions on where to go for care. Opinions vary, though, as to whether these real-time "wait clocks" posted on web sites could potentially increase or decrease legal risks for EDs.

Middlesex Hospital in Middletown, CT, has been posting door-to-doctor times for its three EDs since September, 2009. (To view current wait times, go to www.middlesexERtime.com.)

"The response from the public has been 100% positive," reports Michael Saxe, MD, FACEP, chair of the department of emergency medicine at Middlesex. "They appreciate having the information in advance. Sometimes, patients use the posted times to decide which of our three EDs to go to, for problems that are not life-threatening."

Saxe says that he is aware of only one complaint from a patient, whose wait ended up being considerably longer than the posted time because a critical patient arrived just after he did. He adds that he doesn't think that the posted wait times could be used against the ED in the event that a malpractice lawsuit is filed.

"We have disclaimers on the website stating that the posted times are not guaranteed, and are only estimates," says Saxe. "I am not aware of any lawsuits of this sort. In fact, by posting the times, our hope is that non-emergent patients will basically triage themselves to the ED with the shortest waiting time. Some do this."

Ideally, this would reduce disproportionate surges in patient volume at any one ED. "When we reduce the surges, we are able to better match ED beds and staff to patient demands," Saxe says. "This reduces waiting and reduces patient dissatisfaction. And I predict it will reduce lawsuits."

S. Allan Adelman, JD, a health law attorney with Adelman, Sheff & Smith in Annapolis, MD, says that he thinks it's unlikely that posting wait times would reduce legal risks for EDs.

"Even if a patient is told that a wait time is three hours, if that patient is in critical condition when they arrive and is not promptly evaluated and treated according to accepted standards of care, having told the patient there is a long wait time is not going to save the hospital from a malpractice claim," he says.

Another Layer of Transparency

Wayne Guerra, MD, MBA, chief medical officer and co-founder of Lakewood, CO-based Healthagen LLC, notes that it's commonly accepted that about half the ED visits across the country are unnecessary, meaning that the patients could have been treated in other health care settings. In part to address this, his company developed an iPhone / Android application and a web site for individuals to get information on their symptoms and local facilities, including wait times for some EDs. (For an example, go to http://www.itriagehealth.com/search/providers and search the zip code "33180.")

"I can understand some of the initial concerns. But personally, I think it's rather short-sighted [to assume] that giving wait times is going to prevent people from being seen," says Guerra. "If it says that the waiting time is 65 minutes, it's unlikely that a patient with chest pain will decide not to be seen."

Guerra says that wait times are "just one more layer of transparency that we need to give patients. If there are two ERs and one is farther but there is no wait, we should help people to make that decision. That is good information to have, just as we give them information about the quality of the facility."

Adelman says, though, that he would expect a patient suffering from a serious condition is either going to be taken to the nearest hospital by ambulance, which means that posted wait times are meaningless, or the patient is simply going to go to the nearest hospital on his own and expect immediate treatment regardless of the wait time posted.

"If you think you are having a heart attack, or have been injured and are bleeding profusely, I would think almost every patient is going to go to the nearest ED and expect prompt treatment, and not really shop around based on posted wait times," Adelman says.

Asking for $$ for Quicker Care? You're Asking for a 'Legal Disaster'

A number of EDs currently post their current wait times online, but some take it a step further by charging patients a fee to "hold their place" in line before they arrive. For example, by paying a fee of $24.99, patients are guaranteed to be seen in 15 minutes or less at Emory Adventist Hospital's ED in Smyrna, GA, or the visit is free.

Michael Saxe, MD, FACEP, chair of the department of emergency medicine at Middlesex Hospital in Middletown, CT, which posts wait times, says that his ED looked into implementing a similar approach, but ultimately decided not to pursue it. "I don't feel comfortable charging a fee for this," he says.

S. Allan Adelman, JD, a health law attorney with Adelman, Sheff & Smith in Annapolis, MD says that he views the practice as "a public relations and a legal disaster. The concept of better, faster healthcare for those who can pay more, which means slower healthcare for those who can't, is entirely inconsistent with the fundamental principles on which our tax-exempt charitable hospital system is founded," says Adelman. "This elitist approach will undoubtedly bring scrutiny from regulators and legislators."

Moreover, Adelman says that in his opinion, giving one patient a preference for monetary reasons necessarily means delaying treatment for other patients who don't pay more, and "is a pretty clear EMTALA violation. Further, if someone who can't pay the $25 has a bad outcome, you can be assured the patient's attorney will have a field day with such a system in front of the jury in the malpractice case."

However, Guerra says that he received a patient testimonial involving a man calling 911 because his partner collapsed. While they were waiting for help, the man looked up the shortest ED wait time. When the paramedics arrived, he asked them to go there. "And they did. So this information is being used to make decisions. Just like any other tool, there are scenarios where it potentially could be misused," says Guerra. "But keeping patients uninformed is probably worse than giving them the information."

What Are the Risks?

David C. Seaberg, MD, an attending emergency physician with Erlanger Health System in Chattanooga, TN and former residency director and chairman of the department of emergency medicine at the University of Florida, says that he sees several potential legal liabilities if ED wait times are posted. First, if someone with a life-threatening illness or injury bypasses an ED due to the perceived waiting time and has a negative outcome due to the delay in treatment by going to a different ED, the first ED may have some liability.

"Triage is a complex process, not likely understood by the public. Therefore, posting waiting times can be misleading," says Seaberg. "If someone has a life-threatening illness or injury, an emergency physician will see that person no matter how busy the ED may be, or how long the perceived waiting time may be."

Another question, though, is whether anger over a wait time longer than "advertised" could make a patient more likely to sue the ED.

"I have always felt that a key ingredient in medical malpractice cases is failing to meet patients' expectations when there is a bad outcome," says Adelman. "So, if there is a bad outcome as a result of an ED visit, and the patient feels like they were misled about the amount of time it would take to get treatment, that could be a significant factor in the patient's decision to pursue a malpractice claim."

Adelman adds, however, that failing to see a patient within the posted wait time, in and of itself, should not have any effect on the outcome of a malpractice claim. To do so, the plaintiff would have to show that there was a bad outcome due to an inappropriate delay in treatment, that the patient came to the ED in reliance on the posted wait time, and that the patient was not seen within the posted waiting time due to the negligence of the hospital.

"Nevertheless, you can certainly expect that plaintiffs' attorneys will make a big issue in front of a jury about the hospital's failure to live up to the representations it made about waiting time," says Adelman. "The hospital will be put on the defensive to explain why there was a good reason the patient was not seen within the posted wait time."

In short, if an ED wait time is not posted, the plaintiff is the position of having to show that the standard of care was not met because a patient was not evaluated and treated within a reasonable time based on the patient's condition. If the ED wait time is posted, this gives the plaintiff "a tangible benchmark to refer to, rather than a subjective standard," says Adelman.

End-run around EMTALA?

Seaberg says there may be some liability if, by posting waiting times, you give the impression of "coercing" patients to leave your ED before doing a medical screening examination as required by the Emergency Medical Treatment and Active Labor Act (EMTALA).

"All patients should receive a timely medical screening exam, regardless of how long the 'waiting time' might be," says Seaberg. "The concept of triage, medical screening exams, and waiting times are confusing to the public. Therefore, I feel it is best for emergency departments to not post these times. It may be more appropriate for urgent care centers, but not EDs."

One important consideration, according to Adelman, is that hospitals posting ED wait times need to be sure that the information is not posted in a manner that is deceptive or misleading, or that creates unreasonable expectations that cannot be met. For example, information should not be posted that indicates the wait time is only 30 minutes, when that only measures the time until the patient is brought back to into an ED bed. In reality, it may be much longer before the patient is seen by a physician or other appropriate healthcare provider.

Patient satisfaction problems are more likely than legal problems, though, if posted wait times aren't met.

"Posting wait times does not change a hospital's obligation to promptly provide a screening examination as required by EMTALA, and then to treat the most seriously ill patients first," says Adelman. "The hospital should effectively screen arriving patients to be sure that seriously ill patients are seen promptly, regardless of the posted wait time."

Adelman says that most importantly, hospitals need to have an effective triage and screening examination process which ensures that seriously ill patients are seen promptly to avoid having a patient's condition deteriorate while waiting.

In Adelman's view, it's unlikely that EDs will be accused of using posted wait times as a way to discourage patients from coming to be seen.

"I would expect that hospitals are using posted waiting times as a means to encourage patients to come to the ED, not discourage them," he says. "That means that hospitals with long wait times are probably not going to be posting them. If the wait times posted are accurate, I find it hard to believe that the government would conclude that they were posted to discourage patients from coming to the ED. They would have an even harder time proving that it was actually the result of posting wait times."

Posting wait times for patients to see before they come to the ED is really no different than telling people after they arrive in the ED how long it will be before they are going to be treated, adds Adelman.

"The fact that you tell someone that you have a three-hour backlog should not be seen as an EMTALA violation if you really have a three-hour backlog, and you promptly screen the patient and then provide further evaluation and treatment based on the severity of their condition and the likelihood that they will suffer harm if treatment is delayed," says Adelman.

In other words, the "current" wait time should refer to the wait time being experienced by patients who do not require immediate treatment.

Take these Precautions

Adelman says patients should be made aware of how waiting time is measured. Does it refer to the time the patient registers in the ED until they are first examined? The time before the patient is brought back into the treatment area and put in a bed? Or the time between registration and when the patient first receives an examination by clinical personnel?

"Do not use artificially low times like the time between arrival at the ED and an initial screening or triage examination," says Adelman. "These may be done within a few minutes, but then definitive examination or treatment does not occur for hours."

Also, make patients aware that the wait time posted is only the current wait time, and that things can change between what is happening currently and when the patient arrives in the ED.

"If patients in the ED are not being seen within the posted wait times, the hospital should have someone available to explain to the patients what is going on and why there is a delay," says Adelman. "Most patients will understand this, if they are told that the ED received multiple patients from a bus wreck a few minutes before they arrived, and as a result things have been slowed down."

Sources

For more information, contact:

• S. Allan Adelman, JD, Adelman, Sheff & Smith, LLC, Annapolis, MD. Phone: (410) 224-3000. Fax: (410) 224-0098. E-mail: AAdelman@hospitallaw.com

• Wayne Guerra, MD, MBA, Chief Medical Officer, Healthagen LLC, Lakewood, CO. Phone: (720) 375-4190. E-mail: WGuerra@Healthagen.net

• Michael Saxe, MD, FACEP, Chair, Department of Emergency Medicine, Middlesex Hospital, Middletown, CT. Phone: (860) 344-6693. Fax: (860) 343-4444. E-mail: msaxe@midhosp.org

• David C. Seaberg, MD, Emergency Department, Erlanger Hospital, Chattanooga, TN. E-mail: David.Seaberg@erlanger.org.