Policies and Guidelines Bury Hospitals and Physicians
Policies and Guidelines Bury Hospitals and Physicians
Michigan appeals court allows use of hospital's internal policies and ACEP's Clinical Chest Pain policy as evidence against hospital and urgent care physician in malpractice case.
By Robert Bitterman, MD, JD, FACEP, Contributing Editor; President, Bitterman Health Law Consulting Group, Inc.
The pros and cons of writing explicit hospital policies and procedures and/or adopting specialty approved clinical guidelines have been heavily debated in the medical-legal literature. Do they minimize practice variability? Do they improve patient care? Do they increase or decrease medical malpractice liability? Case law suggests ever-increasing litigation against hospitals and physicians related to such written policies or clinical guidelines. A recent chest pain wrongful death lawsuit in Michigan highlights the risks to providers.
Jilek v. Stockson, et al.1
Mr. Jilek presented to the Maple Urgent Care Center (UCC) complaining of flu-like symptoms that had not resolved after a course of antibiotics. He did not complain of chest pain at triage, but the physician documented in the medical record that he had "chest tightness" and "trouble breathing" that "interfered with his ability to run;" and that Mr. Jilek appeared in "moderate distress."1 Judging the patient symptoms to be respiratory in origin, not of cardiac origin, no EKG, enzyme biomarkers, or cardiology referral was done. The physician prescribed an albuterol inhaler and discharged Mr. Jilek from the Urgent Care Center.
Five days later, Mr. Jilek died while exercising, just after using the albuterol inhaler. (A typical ED chest pain discharge/"go home and die" case.) Autopsy revealed the cause of death to be an acute myocardial infarction due to an hours-old clot obstructing a severely diseased left main coronary artery.
Mr. Jilek's family and estate sued the urgent care physician and the hospital that owned the UCC. They asserted that the physician fell below the standard of care for emergency medicine by failing to take a more detailed chest pain history, failing to do an EKG or undertake a cardiac work-up, and/or failing to refer the patient to a cardiologist for timely evaluation of his chest pain complaints. Additionally, the plaintiffs alleged that until a cardiac etiology was ruled out, the physician should have instructed Mr. Jilek to refrain from exercise and should not have prescribed albuterol.
The case went to the jury. After hearing the experts testify on whether Dr. Stockson should have investigated the patient's condition to comply with the standard of care, the jury found in favor of the physician. The hospital reached a settlement with the plaintiffs the day the trial began.1
The family appealed the jury decision on a number of grounds, one of which was that the trial judge had improperly excluded from evidence some internal hospital urgent care policies and guidelines, and the American College of Emergency Physicians' Clinical Policy for Initial Approach to Adults Presenting with Chief Complaint of Chest Pain with No History of Trauma (ACEP Chest Pain Policy).1 This article will focus on the "policy" issue of the case, but before delving in, it is worth noting one of the other grounds for appeal decided by the court.
Standard of Care for Urgent Care Center
The physician working in the UCC was a board-certified family physician, ineligible to sit for the emergency medicine boards. The trial judge had instructed the jury that the applicable standard of care was that of "a physician specializing in family practice and working in an urgent care center." Logical though that may seem, Michigan law requires the court choose "the one most relevant specialty" to set the standard of care, and the appellate court decided as a matter of law that the specialty should be emergency medicine, not family practice.2 The court held that the locus of the practice and the substance of the medicine being practiced at the time of the alleged malpractice defined the relevant specialty.1,3 The court granted the plaintiffs' appeal, stating that the governing standard of care to be employed at the new trial was emergency medicine. Thus, at least in Michigan, it appears that physicians working in a typical UCC will be held to the standard of emergency medicine, regardless of their past specialty training or board certification status.1
Admissibility of Policies and Guidelines as Evidence at Trial
The appellate court divided the issue into the hospital's internal rules, policies, or guidelines and external guidelines, such as ACEP's Chest Pain Policy or those of the Joint Commission on Accreditation of Healthcare Organizations.1 The court noted that no state statute bars use, and no state privilege shields use of such guidelines as evidence in medical malpractice trials.1 However, there was long-standing, well-established, existing Michigan court precedent which stood for the proposition that "an institution's internal rules and regulations do not add to its obligations to the public or establish a standard of care."1,4 The appellate court sidestepped that doctrine, recognizing that "a hospital's rules could be admissible as reflecting the community's standard where they were adopted by the relevant medical staff and where there is a causal relationship between the violation of the rule and the injury."1 (Emphasis added)
It noted that the policies "did not set or define the standard of care, only that they may be considered as relevant to the jury's determination, based on expert testimony, of what that standard is."1
The hospital's internal urgent care policy, "Process for Transferring Urgent Care Patients with Chest Pain" provided that "Adult patient with chest pain arrives at urgent care; vital signs and EKG obtained." The court noted this could be interpreted to mean that all adult patients presenting to the UCC with chest pain must have vital taken and an EKG performed, in which case it's admissible to support plaintiff's claim that Mr. Jilek's "chest tightness" should have been assessed with an EKG. Contrarily, the court also noted the policy could be interpreted to mean that only those adults who actually had an EKG would be considered for transfer, in which case the policy would be inapplicable to Mr. Jilek and thus inadmissible at trial. The trial judge's determination on admissibility would depend on the expert testimony on the applicability of the policy to the appropriate standard of care.1
The court ruled that the trial judge erred in excluding plaintiffs from introducing the ACEP Chest Pain Policy. It noted that Michigan courts, as well as most state courts, routinely allowed external guidelines to be used as evidence in determining whether the hospital or physician met the standard of care.1,5
The court also noted that the ACEP policy was admissible since it specifically had been adopted by the hospital and Dr. Stockson's contract physician staffing group for use in its emergency department and urgent care clinics, including Maple Urgent Care at the time that Dr. Stockson treated Mr. Jilek.1,4,6 It held that the physician defendant certainly can argue that Mr. Jilek's chest pain was not of the type to which the ACEP Chest Pain policy would be relevant, but since the plaintiffs presented evidence that Mr. Jilek's chest pain was of that type, the ACEP document was relevant to the standard of care and therefore admissible at trial.
Thus, the court decided that internal hospital policies and guidelines and external guidelines do not in and of themselves set the standard of care, but they should be admitted so long as they are relevant to the applicable specialty's standard of care and to the injury alleged by the plaintiffs. The case was just appealed to the Michigan Supreme Court on September 9, 2010.1
Different Ruling Under EMTALA?7,8
Unlike under state malpractice law, where the courts hold that internal or external policies or guidelines adopted by the hospital do not "set or define the standard of care," under EMTALA such policies can establish a duty and set the standard of care. Plaintiffs now routinely try to prove hospitals provided "disparate treatment" in violation of EMTALA by showing that the hospital deviated from its established medical screening policy.9
If the hospital has a policy that states all chest pain patients must have an EKG done within 10 minutes of arrival, then failure to do the EKG, or failure to perform an EKG within 10 minutes is a violation of EMTALA. If the plaintiff can prove the violation proximately caused harm, then he can recover damages in a civil action against the hospital under EMTALA. The hospital could argue over whether "chest tightness" constituted "chest pain" for purposes of complying with the chest pain/EKG policy, but it could not argue that its internal 10-minute rule did not set the standard for purposes of complying with the federal law. Under EMTALA, the hospital sets its own medical screening standards and it will be held to those standards, even if they are higher or different than the prevailing standards in the community.
For example, in the case of Bode v. Parkview Health System, a 6-year-old child with multiple congenital anomalies died from dehydration one day post-discharge from the hospital's ED after presenting with vomiting and diarrhea.10 An Indiana federal court ruled the hospital could be liable under EMTALA for failing to provide an appropriate medical screening when it deviated from its standard policies, which required the ED to take the blood pressure of children aged 6 and older and reassess vital signs before discharge. The policies were admissible to demonstrate that the hospital provided disparate treatment by failing to comply with its self-imposed standards. The jury then would decide if the failure to meet that standard, by failing to take the child's blood pressure or reassess vital signs before discharge, was a proximate cause of the child's death from dehydration the next day.10
Case Comment and Summary
Hospitals should undertake proactive reviews of their ED policies and procedures, particularly those centered on the EMTALA-mandated medical screening examination requirement. Liability for "failure to follow your own rules" is growing, and decisions like the Jilek case just increase the likelihood that a health care institution's internal policies and procedures will be used against it in medical malpractice and EMTALA litigation. Plaintiff lawyers certainly will attempt to use the hospital's internal policies and external guidelines, particularly if adopted by the hospital or its emergency physicians, to define the applicable standard of practice at trial.
1. Jilek v. Stockson et al., __ N.W.2d __, Mich. Ct. App. No. 289488 (July 29, 2010) (appeal filed, Mich. No. 141727, September 9, 2010).
2. Citing Woodard v. Custer, 719 N.W.2d 842 (Mich. 2006); Cox v. Flint Bd. of Hosp. Managers, 651 N.W.2d 356 (Mich. 2002).
3. See Reeves v. Carson City Hosp., 736 N.W.2d 284 (Mich. App. 2007) ; see also Gonzalez v. St John Hosp. & Med. Ctr., 739 N.W.2d 392 (Mich. App. 2007).
4. Citing Gallagher v. St. John Hosp. & Med. Ctr., 739 N.W.2d 392 (Mich. App. 1988).
5. Zdrojewski v. Murphy, 657 N.W.2d 721 (Mich. App. 2002).
6. Citing Owens v. Allis-Chalmers Corp., 326 N.W.2d 372 (Mich. 1982).
7. 42 U.S.C. § 1395dd
8. This section sets aside the issue of whether EMTALA applies to hospital owned and operated off-campus urgent care centers, which CMS believes does apply, while many practicing legal experts believe it does not.
9. E.g., Clark v. Baton Rouge Gen. Med. Ctr., 657 So.2d 741 (La. App. 1995); Correa v. Hosp. San Francisco, 69 F.3d 1184 (1st Cir. 1995); Scruggs v. Danville Reg'l Med. Ctr., No. 4:08CV00005 (W.D. Va. 2008).
10. Bode v. Parkview Health Sys., No. 1:07-CV-324 (N.D. Ind. Mar. 23, 2009).Michigan appeals court allows use of hospital's internal policies and ACEP's Clinical Chest Pain policy as evidence against hospital and urgent care physician in malpractice case.
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