Lower the risk of ED malpractice claims by addressing five underlying conditions

ED produces high percentage of claims, but strategies can help

Risk managers often look at the emergency department (ED) as "a little like a container of potato salad left out in the sun. It’s a Petri dish for all the terrible things that can happen in your hospital," says one expert. That attitude has some basis in fact, she says, but there are specific actions you can take to reduce the risk.

The ED is the source for a disproportionate number of malpractice claims at most hospitals, so it should be a primary focus of attention for risk managers, says Diane M. Sixsmith, MD, MPH, FACEP, chairwoman of emergency medicine at New York Hospital Medical Center of Queens in Flushing. Twenty percent of all claims originate in the ED, she says. You cannot make your ED litigation-proof, but you can control ED liability by concentrating on the five conditions that are the basis for most ED claims, Sixsmith says. EDs are fertile ground for litigation for several reasons, she notes.

"People arrive with real conditions, with the potential for significant disability or death, and those conditions often present in subtle ways," Sixsmith says. "The ED is a safety net for society, so the patients are more likely to be unemployed, not well educated, and English might not be their first language. They often have no previous relationship with a provider, making it more difficult to judge their condition. "That’s a recipe for disaster," she adds.

Bedside manner makes a difference

In addition to her extensive ED experience, Sixsmith has been an expert witness and malpractice consultant for 25 years. She spoke on the topic at the recent meeting of the American Society for Healthcare Risk Management (ASHRM) in Nashville, TN, along with Andrew S. Kaufman, JD, a partner with New York City’s Kaufman, Borgeest & Ryan, a prominent law firm that defends health care malpractice claims. Both speakers emphasized many of the truisms that risk managers know about malpractice liability are exaggerated in the ED. For instance, risk managers know that most plaintiffs sue not necessarily because of their medical care but how the staff treated them, especially after an adverse event. That is very true in the ED, Sixsmith says.

A bad personal interaction only will increase the chance of a patient suing when something goes wrong, she says, whereas a patient may be more likely to forgive even a true oversight when the staff seemed to actually care. And unfortunately, the typical overcrowding, short staffing, and fast pace of the ED make it especially difficult for the staff and physicians to be charming with each patient.

Getting off on the wrong foot with a patient in the ED may have a direct effect on your clinical decisions down the line. "My theory is that the physician/patient and nurse/patient relationship is very much a part of health care," she says. "A bad relationship actually interferes with care. Not getting a good history or not talking to the patient enough to get good information affects the actual care, not just the perception of care. If you’re unpleasant with the patient, the patient won’t be forthcoming with the information you need to provide optimal care."

Claims come from what you don’t do

Risk managers are paying more attention to the ED lately, Kaufman says. ED risk management used to be "if a patient dies leaving your ED, you turned him around so it looked like he was entering your ED," he says with tongue in cheek. "We’ve come a long way."

ED physicians and staff are at a distinct disadvantage when it comes to avoiding liability, Kaufman says. They have limited time and limited familiarity with patients, he notes, unlike some other physicians who can take their time in making the right decision about a patient they’ve treated for months. He points out that 90% of ED malpractice claims involve discharged patients, not those who were admitted for further treatment. That fits with Sixsmith’s warning that most ED malpractice claims stem from what physicians and staff didn’t do, rather than errors they committed. "It’s what you don’t do that gets you sued. That’s unique in the ED," she says. "So action is better than no action."

Sixsmith and Kaufman urge risk managers to focus on five conditions in the ED that are the root of most malpractice claims. Kaufman also suggests five specific strategies for reducing your ED’s overall malpractice risk.

Headache can be liability risk

Risk managers should work with medical directors to ensure that clinicians are following best practices for the conditions most likely to result in malpractice claims, Sixsmith says. Some of the risk reduction strategies for the conditions are clinical, but risk managers can help by establishing the right institutional and procedural policies. In some cases, physicians will need the backing of the institution in order to make the right clinical decisions.

These are the five conditions that risk managers and ED staff should focus on:

1. Headache: The patient presenting with a terrible headache is a clinical challenge and a huge liability risk. She might have nothing more than a routine headache, or she might have a subarachnoid hemorrhage from which she will drop dead with little notice. Guess what happens if you assume the former and it’s really the latter. Properly diagnosing a serious and life-threatening cause of headache often requires a CT scan and lumbar puncture, but Sixsmith says ED physicians often stop at a negative CT scan because the lumbar puncture is painful and can be difficult to perform. Those excuses won’t matter later if the cold, hard clinical facts indicated a lumbar puncture. "If the patient needs a particular procedure, you can’t say he doesn’t need it because it’s difficult. Either he needs it or he doesn’t," she says. "A standard policy in the ED should be, If you think of it, do it.’"

2. Chest pain: Chest pain is inherently tricky for clinicians to diagnose and treat properly, Sixsmith says. But modern treatment strategies also mean that even the sickest patients can fare well if ED staff makes the right decisions. "Plaintiffs’ attorneys can easily claim that the patient would have fared better if only . . . ’" she says. "Risk factors are very important. If a smoker comes to my ED with chest pain, he gets admitted. No question."

Certain practices can help the ED staff provide the best care for chest pain while also reducing the liability risk, Sixsmith says. Risk managers should ensure that it takes no longer than 30 minutes after the patient first enters the ED for drugs to be administered, and no more than 90 minutes before catheterization. ED staff should obtain a cardiology consult immediately if the patient is unstable.

3. Abdominal pain: Many abdominal conditions present atypically, especially in elderly patients, Sixsmith says. Risk managers should make sure the ED team knows that this common complaint must prompt a thorough examination, not just a simple check. All patients complaining of abdominal pain should undergo a rectal exam, she says, and a normal blood test does not rule out an abnormal process. CT scans and surgical consults should be routine for any abdominal pain that cannot be explained definitively, Sixsmith says. That might not be happening in your ED now, she says, so it is up to the risk manager to deliver that message. "A CT is now the standard of care for abdominal pain, and I will stake my professional reputation on it," she says. "It’s no longer just observation. Make sure your institution makes it easy for ED docs to get a CT scan."

4. Head injury: Head injury is the most time-sensitive symptom that presents in the ED, Sixsmith says, so reducing your liability is all about making sure the patient gets treatment fast. A CT scan should be done within 30 minutes, and there must prompt neurosurgical response. If the patient must be transferred, make sure the ambulance provider will guarantee a prompt response. Also, encourage ED staff to assume a serious head injury in an inebriated patient until you can determine otherwise. Inebriated patients can be difficult to evaluate for head injury, she says, and besides, they’re just more likely to have one.

Another important consideration is nursing observation and how it is documented. In the event of a lawsuit, you want to be able to show that a nurse performed a neurological check frequently. Too often, the record documents just the opposite — especially at shift change. "I can’t tell you how many times I’ve seen records with the nurse documenting that the patient’s neurological status was all normal and then the next nurse documents two hours later that the patient was unresponsive," she says.

5. Stroke: The primary liability risk with stroke patients involves consultations over the phone, Sixsmith says. Delays in treatment are closely related. Speed is important, but consultations with a neurologist should not be done over the phone, she says. Get the neurologist there in person to see the patient, but it also is important that ED physicians have the authority to provide treatments considered the standard of care for stroke patients without further authorization. The ED should be structured so that patients with stroke symptoms can be triaged rapidly and get a CT scan of the head within 45 minutes of arrival.

Keep customers happy

Overall, Sixsmith says risk managers should encourage a focus on customer service in the ED. "Minimize the likelihood that a patient in the ED walks away as an unhappy consumer," she says. She also urges risk managers to make sure that ED physicians have authority to admit patients to the hospital when they see fit, rather than requiring admission by a physician in the department receiving that patient.

The ability to admit patients will overcome some difficult situations in which the ED physician knows the patient needs to be admitted but can’t convince other physician. In such disputes, the ED physician must be able to do what he or she thinks is best for the patient, Sixsmith says, so be sure hospital policy makes that possible.

She also issues a special warning to any risk managers in teaching institutions: Residents are a risk manager’s nightmare in the ED. In addition to their relative inexperience, they have a vested interest in deciding that a patient is OK and the symptoms are benign, because they and their fellow residents carry the burden of covering admitted patients. Ensure that residents are closely supervised in the ED, even more so than in other departments, she says.

Sixsmith recounts a case in which a patient’s chest pain was misdiagnosed in the ED by a resident, and the man died from an aortic dissection. "The patient was a lawyer, and no one sent out a lawyer alert in the ED," she says jokingly. "If you have a lawyer in the ED, by all means, get him a real doctor and a cardiology consult."