Death after leaving ED leads to outcry, but was the hospital in the wrong?

Patient removed by police but dies soon after in jail

A hospital in Missouri is under fire for having a homeless woman ejected from the emergency department (ED) when she refused to leave; the woman died soon after in police custody from a blood clot. Critics allege the hospital is liable, but others say this might be a case in which the hospital met the standard of care and is not responsible.

Twenty-nine-year-old Anna Brown went to the ED at St. Mary's Health Center in Richmond Heights, MO, a suburb near inner St. Louis, complaining of pain in her leg that was so severe she could not walk, according to police. She was examined, but the source of the pain was not determined. The ED discharged her, but Brown refused to leave for seven hours. She sat in a wheelchair and complained that she needed help. Finally, the ED called the police and had her arrested for trespassing.

Police carried Brown out of the ED, and a police surveillance tape shows them depositing her on the floor of a cell. Fifteen minutes later, she was pronounced dead. An autopsy later determined that she died of a blood clot that traveled from her leg. When the Sept. 21, 2011, incident became public six months later, the woman's family criticized the hospital for its alleged callousness and malpractice. The police said they relied on the hospital's assurance that Brown was not in need of care. The hospital released a statement saying the ED staff had properly examined Brown.

The hospital will be sued if they haven't been already, says plaintiff's attorney Jeffrey M. Kimmel, JD, a partner with the law firm of Salenger, Sack, Kimmel & Bavaro in New York City. "And they will end up settling because I don't expect they would want this to go to trial with the videotape evidence and such a clear case of a missed diagnosis. They thought she was drug-seeking, and they were wrong," Kimmel says. "The examination for her complaint was straightforward and obvious, but apparently they didn't do it. Unless the facts are otherwise, I don't see how it will be hard to prove the hospital's liability."

Kimmel said he does have some sympathy for the hospital because EDs must contend with many patients who are malingering, seeking drugs, or otherwise difficult. His advice is to single out those patients for extra attention, rather than trying to get them out of the ED, a solution he acknowledges can be difficult to carry out. "The ED must actually go over and beyond with these patients they suspect are crying wolf or drug-seeking. These are the ones where the diagnosis can be missed, because maybe you've seen this person a hundred times and you know he just wants drugs, so you don't take it seriously and do a proper examination," Kimmel says. "From a human standpoint, that's kind of understandable. But the law will make no allowance for the fact that you thought your patient was faking."

Another plaintiff's attorney says the case will hinge on exactly what care Brown received while in the ED. If she was examined in a manner that meets the standard of care for a patient with her complaint and symptoms, the hospital fulfilled its obligations under the Emergency Medical Treatment and Labor Act (EMTALA), says Sidney Schupak, JD, a partner with the law firm of Ashcraft & Gerel in Alexandria, VA.

The protocol for examining a patient with leg pain is clear, Schupak says, so the hospital will need to produce a medical record that shows compliance. "The message here is that status doesn't matter when it comes to EMTALA and negligence," Schupak says. "Sometimes drug-seekers and mentally ill people have medical conditions. They can be the most annoying patients, but the law requires that you overcome that and give them the same standard of care as anyone else."

Schupak points out, however, that it is entirely possible the hospital met the standard of care and her subsequent death was not due to negligence. From a legal standpoint, such cases are fact-specific, and litigation would focus on the exact nature of Brown's symptoms and complaints at the time she was examined.

The risk manager's first question on hearing of the death should have been whether the patient was assessed properly, Schupak says. If she was and there was no evidence of an embolism, it was proper to discharge the patient, and the death was not the hospital's responsibility, he says.

"The fact that she died of a pulmonary embolism soon after leaving the hospital doesn't mean it should have been caught. It depends on her presentation at that time," Schupak says. "The opposite is possible as well, and she could have had clear signs of an embolism. It all depends on what is in the medical record."

Despite the extensive media coverage of Brown's death and the accusations against the hospital, Robert Wild, JD, a partner with the law firm of Garfunkel Wild in Great Neck, NY, cautions risk managers not to rush into changing ED policies and procedures.

"I don't believe there is a systemic problem of hospitals not recognizing and appropriately treating emergency patients. Some conditions can be missed for good reason, and I don't think this case points to any great failing by our hospitals," Wild says. "The real lesson for hospitals may be more about how a story like this can be sensationalized in the media and the damage it does to the hospital's reputation, whether they did anything wrong or not."

Sources

• Jeffrey M. Kimmel, JD, Partner, Salenger, Sack, Kimmel & Bavaro, New York City. Telephone: (212) 267-1950. Email: jkimmel@salsack.com.

• Sidney Schupak, JD, Partner, Ashcraft & Gerel, Alexandria, VA. Telephone: (703) 931-5500.

• Robert Wild, JD, Partner, Garfunkel Wild, Great Neck, NY. Telephone: (516) 393-2222. Email: rwild@garfunkelwild.com. F