Consider practice guidelines for the ED

By Janet Adams, JD

Adams, Hill, Reis, Adams, Hall & Schieffelin

Orlando, FL

This case arose as a result of a misdiagnosis in an emergency department (ED). The patient presented to the department complaining of pain in her left hip, lower abdomen, and running down her leg. She also complained of being unable to walk, shaking, and having severe chills. After obtaining a verbal history, performing a physical exam, and ordering a urinalysis, the ED discharged the patient with instructions to either return or seek consultation with a specific orthopedic surgeon, if her condition became worse.

The next day the patient presented to the ED, in septic shock, and was admitted to the intensive care unit, where she remained for more than four months. During her stay, she ultimately had double below-the-knee amputations, lost her sight in one eye, and suffered severe and permanent lung damage.

During a jury trial, it was shown that the hospital's specific screening procedures did not include diagnostic studies, when needed, to identify critical conditions in patients with complaints similar to this one. The court also found evidence that would enable the jury to conclude that this patient was treated differently from others who presented to this same hospital ED.

The jury was given further testimony regarding the types of diagnostic studies that should have been performed to meet the basic standard of care. After viewing the evidence, the jury found that the patient was not given an "appropriate medical screening" as is required by EMTALA and therefore the hospital had violated this federal statute.

In upholding the jury verdict, the appellate court specifically found that EMTALA was not intended as a guarantee that patients will receive a proper diagnosis, nor was it intended to act as a federal remedy for medical negligence or misdiagnosis. Instead, the Court noted EMTALA was intended to require uniformity in screening procedures for all patients seen and treated in EDs.

The court further concluded that in order to meet their burden of proof in an EMTALA claim, patients must prove the treatment they received deviated from the treatment that would be given to other patients with similar presenting symptoms. While the appellate court recognized the importance of medical judgment in determining diagnostic procedures, it nonetheless noted that a plaintiff need not prove improper motive in order to prevail in an EMTALA claim.

[Power v. Arlington Hospital Association, 42 F.3rd 831 (4th Cir. December, 1994).]

This case emphasizes the importance of uniform screening procedures in EDs. While paying lip service to the importance of individual medical judgment in determining appropriate patient assessment, the court nonetheless held that patients can state a basic EMTALA claim by establishing evidence that they were treated differently from other patients who presented to the ED with similar symptoms.

The federal appellate courts have almost uniformly agreed that EMTALA was not intended to create a federal claim for medical malpractice. Instead, recent cases have emphasized the importance of applying uniform screening procedures to all patients who present in the ED.

This particular law emphasizes and places a premium on uniformity. Indeed, the lesson taught by recent cases is that uniform workup of ED patients with particular types of complaints can be your best defense against potential EMTALA claims -- even if these workups would be inadequate to the extent of being negligent.

In light of these developments, written procedures or practice guidelines are likely to become more widely accepted across the country, defining the types of diagnostic procedures that should be performed on patients with certain basic presenting problems. Naturally, any diagnostic or screening examination that falls below the standard of care poses significant malpractice risks to hospitals and should be avoided.

To defend both EMTALA claims and medical malpractice suits, establish written guidelines or practice parameters for the ED. Use of such practice guidelines would make it much easier for your physicians and hospital to demonstrate clearly that each patient received a uniform and typical diagnostic workup and medical treatment.

Unfortunately, these same practice guidelines, if not followed specifically in every case, can also be clear evidence of both an EMTALA violation and a deviation from the acceptable standard of care. Consequently, when creating ED procedures and practice parameters, make sure the written guidelines are realistic and can be implemented for all patients with similar presenting complaints. *