Court Rulings Say EP, Not On-call MD, Was Legally Responsible for Patient
Hand-off process should be formalized
An on-call specialist may have given recommendations for an emergency department (ED) patient's care, but that doesn't mean he or she is legally responsible.
The emergency physician (EP) has responsibility for the patient as long as the patient remains in the ED, emphasizes Glenna Schindler, MPH, RN, CPHQ, CPHRM, a risk management specialist at Endurance Insurance — U.S. Healthcare in Chesterfield, MO.
"A formal hand-off communication is necessary for continuity of care, and assurance that one provider is giving responsibility for the care of the patient to another provider," says Schindler.
The EP must never assume that he or she is not ultimately responsible for a patient until the patient is transferred to an inpatient unit or to another facility, advises Schindler. "Increasing patient volumes may increase stress levels for ED staff, but it does not remove the obligation of supervision of a patient's care," she says.
Courts Say No Patient-physician Relationship
Courts may not see the on-call specialist as having "accepted" the patient from the EP, even if the specialist provides recommendations to the EP regarding the patient's care.
In a Texas case, an on-call specialist was contacted by an EP, and a patient's case was discussed.1 The on-call physician recommended a particular treatment, which was implemented by the EP.
"The on-call specialist was again contacted following implementation of the recommended treatment, but the on-call specialist did not come to the ED," says Schindler. The patient subsequently stopped breathing, was unable to be intubated by the EP, and a tracheostomy was performed.
The on-call specialist then arrived at the ED, examined the patient, and had the patient transferred to the intensive care unit (ICU). The patient had suffered an anoxic brain injury and was declared brain dead three days later.
"The trial and appeals courts determined there was no physician-patient relationship between the on-call specialist and the patient just because the ED physician had consulted with the on-call specialist," says Schindler. Ultimately, the on-call specialist was found not to be responsible for the patient, as the ED physician was free to accept or reject the on-call specialist's advice.
In a Kansas case, it was again found that an on-call specialist was not responsible for an ED patient just because of the specialist's on-call status.2
In that case, the on-call physician informed the EP that he would not come to the ED due to extreme fatigue. "Eventually, the patient was transferred to a medical center for care of his spinal cord injury and neck fractures," says Schindler. The patient alleged a delay in treatment by the neurologist caused his poor outcome.
"In both of these cases, the ED physician was considered to be the treating physician, as the on-call specialists had not formally accepted responsibility for the patient," says Schindler.
Even patients requiring ICU care who have been accepted to the ICU but remain in the ED continue to be the responsibility of the EP, says Schindler. She points to a 2011 clinical practice committee statement published by the American Academy of Emergency Medicine regarding patients requiring ICU admission. (To view the statement, go to http://bit.ly/1ivqGkQ.)
"These patients should have expedited — less than two hours — admission to the ICU, to relieve the ED physician of the responsibility for these critically ill patients," says Schindler.
Legally, says Schindler, patients in the ED are the responsibility of the EPs and ED nurses until there is a formal hand-off to specialist care, or a shift change. The hand-off from one professional to another should be a formalized process that adheres to providing information in the same manner each time, she advises.
"This is not only for the sake of patient safety, but also for legal determination of responsibility," says Schindler. "Using a form developed for this purpose would benefit both off-going and on-coming professionals."
EP and Specialist Jointly Liable
Michael M. Wilson, MD, JD, a Washington, DC-based health care attorney, is aware of several claims involving bad outcomes that occurred during the period of time between when a specialist was contacted by the EP and when the specialist saw the patient or the patient was admitted.
"Under these circumstances, combined with a change of shift in the ER, there are plenty of opportunities for the patient to obtain less-than-optimal care, particularly when the patient is forgotten as other ER patients are seen," says Wilson.
Frequently, the patient scheduled for admission is boarded in the ED for long periods of time waiting for a specialist to render treatment, or waiting for a hospital bed to become available. "In general, of course, the EP is responsible for the patient until the patient actually leaves the ER," says Wilson.
Generally, the EP and the specialist are jointly responsible for the care provided. "If both the EP and the specialist err in treating the patient, it is likely that both will be sued," says Wilson.
The specialist may argue that the EP failed to provide an adequate history or physical examination, or claim that he or she told the EP to provide different treatment than what the EP documented in the medical record.
"If the EP's history and physical examination were well done and documented, the EP followed the advice of the specialist, and the medical error was made by the specialist, it seems fair that the EP should avoid legal liability," says Wilson. "But this determination may ultimately be left up to the jury."
- Majzoub v Appling, 95 S.W.3d 432 (Tex. Ct. App. Aug.30, 2002).
- Seeber v Ebeling, LEXIS 869 (Kan. Ct. App. Sep. 1, 2006).
For more information, contact:
- Glenna Schindler, MPH, RN, CPHQ, CPHRM, Risk Management Specialist, Endurance Insurance U.S. Healthcare, Chesterfield, MO. Phone: (636) 681-1208. E-mail: email@example.com
- Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. E-mail: firstname.lastname@example.org.