Extending Care Outside ED Brings New Liability Risks

EPs face “double-edged sword” of liability

Were you called by the intensive care unit (ICU) because a patient needs emergent intubation due to a dislodged tube or deterioration of the patient’s status?

The emergency physician (EP) could be held liable if the intubation is unsuccessful — if, for example, the patient is without oxygen for too long or there is an esophageal intubation — warns Jill M. Steinberg, JD, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, in Memphis, TN.

“EPs also could be liable if they address a non-emergent situation in another part of the hospital and there is a complication in the ED,” says Steinberg. “When the EP responds, that may leave his or her ED patients unattended.”

EPs are increasingly responding to codes, semi-elective intubations in critical care, and putting in lines, and may face increased legal risks as a result, according to John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland.

“This will become a bigger issue as time goes on,” he predicts. “Hospital budgets are getting tighter. Everyone is trying to save dollars by not paying for separate house physician coverage, and assigning those duties to the EP on duty.”

Steinberg says she has seen a number of claims involving EPs assisting outside the ED, particularly in smaller hospitals that do not maintain 24-hour coverage of the ICU by critical care specialists, and EPs being called to do deliveries in hospitals without 24-hour obstetrician hospitalists.

“As ER physicians provide care outside the ER, many of the same issues follow them,” says Joshua M. McCaig, JD, an attorney with Polsinelli Shughart in Kansas City, MO. For instance, an EP called to perform a difficult intubation or line placement might arrive with little history on the patient and be asked to perform a procedure that has typically already been attempted unsuccessfully.

“If something occurs, even if there is no negligence, the ER physician is now a party,” says McCaig.

Immunity Is Possible

In order to be covered under Good Samaritan immunity, the EP must receive no financial remuneration and have no duty to service, notes Tafuri.

“If the agreement with the hospital says you cover any in-floor emergency, then you have a duty to serve,” he explains. “Consequently, the Good Samaritan law wouldn’t apply.” On the other hand, if the EP cares for a patient outside the ED with no contractual or understood duty to cover the floors, Good Samaritan protection might apply.

Tafuri says that caring for patients outside the ED presents a major liability risk for EPs, not only from the standpoint of the patients cared for outside the ED, but also the patients in the ED who may be considered “abandoned” by a physician who leaves the ED to attend to an in-house emergency.

“It’s a double-edged sword, and both ends go against the EP,” he says. To reduce risks, consider these strategies:

• Document when you were first called about the patient.

Another physician might have been responsible for the patient’s deterioration, but the EP could still be held liable, says Tafuri. “You are jumping into a problem that may have been going on for a few days,” he says. “You may be dragged into things you had no party to making, and everyone involved may be tarred with the same brush.”

Timing will become critical in the event a lawsuit is filed. “There may be questions later such as, ‘Why did the patient languish for four hours and was so critical that he was unsalvageable at that point?’” says Tafuri. “If you didn’t get called until right after the patient crashed, document that.”

McCaig represented an EP called for an emergency intubation outside the ED. “The patient ended up coding days after this procedure for unknown reasons,” he says.

The EP’s note stated simply that he performed an intubation. However, the hospital staff testified that the EP had a difficult time and struggled to finish the procedure. “This gave the patient enough ammunition to keep the ER physician in the case,” says McCaig.

If the EP had described the procedure, noted the difficulty, confirmed his post-procedure evaluation and that the patient was doing well, his case could have been easily defended. “Instead, it took much longer and more of an expense to get him dismissed from the case,” McCaig says.

• Document exactly how you followed up with the physician.

“If you are not going to be continuing to take care of the patient after the patient has been stabilized, it’s important to communicate with that doctor if there was any problem with his or her patient,” says Tafuri.

• If the attending physician is reluctant to come in and assume care for the patient who has deteriorated, or if there is a significant disagreement about how to treat the patient, consider having a nurse listen in on the call.

“When there are two people on the call, it’s hard for somebody to say, ‘No, it didn’t happen that way,’” says Tafuri. “If a nurse is listening to the call, I believe that it is ethically appropriate to inform the attending physician that the nurse is also on the call.”

• Don’t refuse to provide care.

“If you are the only one there, always provide care if you can. Sort out the legal issues later,” advises Tafuri. “A jury of laypeople will get it when you are trying to do the right thing.”

• Be familiar with the hospital policies and procedures related to any duties the physician has outside the ED.

If there are no policies, the ED physicians should clarify their responsibilities in other parts of the hospital, says Steinberg.

“Further, the EP should be familiar with the on-call system for physicians in other specialties. Understand how to get other backup for handling emergencies outside the department,” she advises.


For more information, contact:

  • Joshua M. McCaig, JD, Polsinelli Shughart, Kansas City, MO. Phone: (816) 395-0651. E-mail: JMcCaig@Polsinelli.com.
  • Jill M. Steinberg, JD, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Memphis, TN. Phone: (901) 577-2234. E-mail: jsteinberg@bakerdonelson.com.
  • John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. E-mail: jotafu@ccf.org.