ED Lawsuit? 'Boarding' Could Become a Factor

Did a "boarded" ED patient have a bad outcome that can be in any way associated with a delay in diagnosis or treatment, or a failure to properly observe?

"In this scenario, it is very easy for a plaintiff's attorney to argue to a jury that the injury would likely have been avoided if the patient had been transferred to an appropriate inpatient unit where better observation and treatment could have been provided," says S. Allan Adelman, JD, a health law attorney with Adelman, Sheff & Smith in Annapolis, MD.

Adelman says that boarding of patients can raise questions about whether the patient was in an appropriate location, and had appropriate evaluation, treatment, and observation, which contributed to some injury or undesirable outcome.

"Boarding patients in a hallway or some other area which is not intended to be used for providing patient care conveys the impression to patients and their families that the patient is not being monitored and observed as effectively as they would be on an inpatient unit, and that admission to the hospital, and the institution of definitive treatment, is being delayed," says Adelman.

Adelman cautions that the perception of substandard care, coupled with an outcome that does not meet the patient's expectations, is as much a cause of malpractice litigation as actual substandard care.

While Adelman does not think that boarding is, or will be, the focus of malpractice litigation, he expects that as it becomes more prevalent, it will be an issue that is raised more frequently, and "will undoubtedly be raised in every case where there is both boarding and a bad outcome."

Less than Ideal Care

"There is increasing litigation that swirls around the concept of boarding," says Matthew Rice, MD, JD, FACEP, senior vice president and chief medical officer at Northwest Emergency Physicians of TEAMHealth in Federal Way, WA. "Sometimes it's a little hard to sort out whether it's boarding that caused the issue."

Patients are being held in the ED when they should be in a different part of the hospital, because the other parts of the hospital don't have the resources to accommodate them. "They are kept in the ED waiting until those resources become available, or quite honestly, sometimes until they are better and go home," says Rice.

Tom Scaletta, MD, FAAEM, chair of the ED at Edward Hospital in Naperville, IL, says he is not sure if boarding has been the focus of litigation against EDs. "I suspect it will be, though, as soon as a caregiver uses this as an excuse," he says. "Hospitals do not like to admit that they have problems with boarding. It is presumed by many that no matter what the resources, ideal care should occur. We certainly cannot deliver ideal care with less than ideal space or staffing."

Scaletta says that boarding would become relevant in a lawsuit when a patient has a problem that occurs well after he or she would have been admitted to the hospital.

"Boarded patients often receive minimal care, as the ED staff is usually busy with the new, incoming cases," says Scaletta.

Although boarding is a problem experienced by the ED, it "is really not an ED-owned problem," says Robert B. Takla, MD, FACEP, chief of the Emergency Center at St. John Hospital and Medical Center in Detroit, MI. "It's usually a capacity issue. We're only going to be as strong as our weakest link. If you've got some throughput issues, then patients are going to be held in the ED."

Debra J. Gradick, MD, FACEP, medical director of the ED at Avista Adventist Hospital in Louisville, CO, and vice president of operations at Serio Physician Management in Littleton, CO, says that it's difficult to track whether lawsuits have alleged bad outcomes due to boarding. There are many factors that come into play in this scenario.

"It's kind of a domino effect," says Gradick. "The patient gets stuck in the hallway and forgotten about. The admitting physician doesn't get a chance to see them for whatever reason. The ED physician is busy trying to keep up with flow. The patient is 'out of sight, out of mind,' and things can fall through the cracks."

Reduce Risks

"The most dangerous aspects of boarding patients involve the possible deterioration of a patient that is not promptly noticed or addressed while the patient is being boarded," says Adelman.

Adelman says that the most effective way to prevent this from happening, and at the same time assure the patient and their family members that the patient is not being ignored or neglected, is frequent interaction with the patient that is documented in the medical record.

Another risk-reducing approach is to designate one or more nurses or other appropriate providers to carefully monitor boarded patients.

"Keep them advised of what is going on with regard to their admission," says Adelman. "This can go a long way to identify any deterioration in a patient's condition early enough to intervene. It also dispels any impression that the patient is not being appropriately attended to while waiting for an inpatient bed."

Gradick notes that solutions for boarding are hospital-specific. What works for one, such as cancelling elective surgery during surges in volume, may not fix the problem for others.

"In a perfect world, it's great to make sure your admitting physicians and hospitalists come down, with time-specific orders where they are actually seeing and evaluating patients in the ED," says Gradick. "But if they are treating 10 patients upstairs, they may not get down there."

Rice says to access additional resources if possible, such as additional nursing staff, or place the patient in a holding or observation area for better monitoring.

"Assuming you don't have those resources and those patients have to stay in the ED, then clarifying how you could get extra resources or help, and who is supposed to be giving orders, is very important," says Rice.

It makes sense to assure that only stable patients are in the hallway, says Scaletta, meaning those already adequately examined and felt to be at a very low risk for becoming unstable. "Often this represents patients waiting for a test or results. Calling in extra ED staff helps. Having a hospital-wide overflow plan is also important," he says.