Crowding Doesn’t Change Legal Standard of Care
Negligent staffing allegations could arise
Did an emergency department (ED) experience a sudden surge in volume at the same time a particular patient presented, who later filed a malpractice suit?
"Almost every ED doctor thinks this should be something considered in their defense," says Charles R. Grassie, MD, JD, an emergency physician (EP) at St. Joseph Mercy in Ann Arbor, MI.
While crowding does not change the standard of care, juries appear to take the fact that an ED was excessively busy into some consideration, according to Mark Spiro, MD, president of CEP America, an Emeryville, CA-based partnership of acute care physicians.
For that reason, defense counsel sometimes ask the defendant EP at trial or in depositions if the ED was excessively and unexpectedly busy. "Crowding could come up during malpractice litigation in the context of extraordinary wait times, and can arise in the context of missed or late treatment due to competing urgencies," adds Spiro.
Crowding as a Defense
In some cases, sudden volume surges can provide an effective defense for an EP. "If you called the disaster and followed all the rules, it would be a very good defense," says Grassie. "A busy disaster situation does change the standard of care dramatically."
For this to be the case, however, the EP would need to have called a disaster and followed hospital protocol. "But that almost never happens, absent a bomb going off," says Grassie. "It is not usually the case, in retrospect."
Persistent ED crowding without physician or hospital intervention would likely not mitigate any particular claim, according to Donald M. Yealy, MD, chair of the Department of Emergency Medicine at University of Pittsburgh Medical Center.
"It might actually aggravate the situation," he says. "The plaintiff attorney will say, You are always crowded. You knew you couldn’t handle this.’"
Even in a crowded ED, EPs have to prioritize their activities. "That’s another reason why it almost never eliminates the standard of care issue," Yealy explains. "Crowding will rarely, if ever, relieve you of meeting the minimum standard of care, even if you trigger an internal mechanism because the ED is busier than expected."
EPs should be clear in their documentation about how they prioritized individuals to be seen, advises Yealy, such as patients with an immediately life- or limb-threatening injury.
For example, the EP could chart, "I spent 20 minutes resuscitating this patient" in the first patient’s chart, coupled with "While stabilizing another patient, the staff did XYZ, and I returned immediately once available," for the next patient.
"I think judges and juries recognize when a physician did the best they could with multiple competing demands," Yealy says.
Negligent Staffing Allegations
If an EP uses crowding as a defense, plaintiff attorneys can then ask, "If you knew that it wasn’t just a sporadic, unpredictable event, why aren’t you staffing differently?"
"Generally, those who bring a tort action focus their attention not only on the physician but also the hospital," notes Yealy. "Unrecognized crowding issues certainly give them a stronger entree to the hospital."
EPs should resist the urge to vent frustrations about constant crowding in the patient’s chart. "The individual patient record is not the place for global operational things to be deposited. I would strongly discourage that," cautions Yealy. "It makes you feel better, but in fact, you are using the record for a different purpose than intended."
Failing to trigger internal mechanisms could be an aggravating factor in the event of a bad outcome during a crowded period. "If you don’t avail yourself of mechanisms that would allow you to meet the standard of care, that’s no different than not making the right choice," Yealy says.
EPs sometimes try to "tough it out" through busy periods instead of availing themselves of options that exist to mitigate crowding. "If these don’t exist, then work with your director to create them," advises Yealy. "But that’s a far cry from saying that using crowding as an excuse will absolve you from the standard of care."
Crowding is rarely brought up by the plaintiff or the defense, as both sides fear it can be used against them, says Grassie.
On the defense side, it could open up a question of negligent staffing, both for the emergency physician group and the hospital. If the EP and the hospital have different insurance policies, both could be tempted to point fingers at each other.
"The EP will say it’s the hospital’s fault for not having enough nurses, and the hospital will say it’s the EP’s fault for not having enough physicians or for not calling the disaster," says Grassie. "The plaintiff just has to sit back and watch both defendants duke it out. They don’t care who pays."
If the EP uses crowding as a defense, the plaintiff could claim negligence in staffing if the ED does not have back-up physicians, nurse practitioners, and physician assistants on call in case the ED becomes excessively and unexpectedly busy. "The plaintiff would have to prove crowding should have been anticipated, and a back-up plan should have been in place," says Spiro.
Grassie says crowding isn’t typically brought up by plaintiff attorneys since if they ask how busy the ED was, "they are probably afraid they are putting defense ammunition in their hands, by opening up the possibility that the standard of care isn’t what it otherwise would be."
EPs might be tempted to argue that the ED being understaffed at the time the patient presented contributed to the patient’s bad outcome. However, it is rarely advisable for the ED group to blame the hospital for a medical claim, says Spiro.
"It can deteriorate into an argument back and forth as to who is most to blame," he explains. "Plaintiffs love that scenario, as we end up doing their work."
For more information, contact:
• Charles R. Grassie, MD, JD, St. Joseph Mercy, Ann Arbor, MI. E-mail: email@example.com.
• Donald M. Yealy, MD, Professor and Chair of Emergency Medicine, University of Pittsburgh and University of Pittsburgh Medical Center. Phone: (412) 647-8295. E-mail: firstname.lastname@example.org.