Unrealistic ED Policies? Lawsuits Will Follow

If a lawsuit is filed alleging malpractice in your ED, the only thing worse for your defense than not having a policy covering an important subject might be having one but failing to adhere to it.

There are so many policies and bylaws that EDs adopt and update continually, however, that it's impossible for any emergency physician (EP) to follow all of them correctly, says William J. Naber, MD, JD, CHC, assistant professor in the Department of Emergency Medicine at University of Cincinnati's College of Medicine and a physician liaison at University of Cincinnati's Physicians Compliance Department.

"Usually, we are given a large binder during our orientation to a new job and emergency department. We are asked to sign an attestation that we read and understand the policies," he says. "If we don't sign it, we simply don't get to work."

Clauses in employment contracts stating that the EP will abide by and follow all policies and bylaws of the hospital he or she is working at create a dangerous situation for the EP, adds Naber, when a medical malpractice suit alleges that part of the breach of duty was not following a relevant policy.

A plaintiff attorney would likely put the EP's contract on a big screen, says Naber, showing he or she is contractually obligated to follow hospital policies and bylaws, make the argument he or she violated the policy or bylaw that is part of the alleged breach of duty, then show how this breach of duty is proximate cause of the alleged harm done.

"This makes an easy-to-follow argument for jurors, who may understand breach of contract better than breach of the standard of care," says Naber.

The EP can document why a policy or procedure was not followed exactly in the relevant medical record, notes Naber, but since the hospital cannot document in the medical record, there must be an internal risk management system to track major policy violations and related documentation of the reasons for the violation.

"Remember, these issues can come up in legal situations years later, depending on the state or federal statute of limitations," says Naber.

Violations Are Common

When any chart is reviewed with a fine-tooth comb, a plaintiff's attorney will find failures to meet various policies and procedures that weren't completely complied with, says Bruce Wapen, MD, an emergency physician with Mills-Peninsula Emergency Medical Associates in Burlingame, CA.

"The old policies and procedures never go away — they only get updated, and new ones are constantly being added," he says. "The more policies you have, the more at risk you are for violating one of them."

If an ED nurse forgot to document the patient's pain level, it may be brought up in a lawsuit even if it's not relevant to the case. "Failure to meet a policy could be brought up as showing a laxity on the part of the EP or the department or facility," says Wapen. "The plaintiff's attorney can throw it into the mix, to add to the impression of the jury that this is a facility which is not up to snuff."

In reality, ED policies are violated on a daily basis, according to Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and co-director of University Hospitals Geauga Medical Center's chest pain center in Chardon, OH.

He gives the examples of ED patients examined in hallways or waiting areas despite patient confidentiality policies, and policies for cleaning treatment rooms after each patient encounter to avoid exposing the next patient to pathogens.

"In a sense, policies and procedures create a no-win situation for the hospital and ED," says Garlisi. "These will be one of the first items to be scrutinized by the plaintiff's attorney, who will look for any deviations."

In the event of an avoidable ED patient death, the ED will be blamed for not having policies and procedures for that particular circumstance, he explains, and if there are comprehensive policies and procedures, the EP and nurses would be held accountable for not following these to the letter.

ED-specific Risks

Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney, says that policies and procedures are "a significant source of legal issues in the ED. These are involved in virtually every malpractice suit, to one degree or another."

ED malpractice lawsuits often involve compliance with, the presence of, and the reasonableness of policies and procedures, says Frew. Here are some specific risks for EDs:

• ED policies may duplicate existing hospitalwide policies, which can lead to inconsistencies between the hospital and department-level policies.

"Once we have inconsistencies, we are at the mercy of the plaintiff's lawyer," says Frew. "The inference is that we are either doing it wrong or that we have dual standards."

The way a test is ordered in the ED differs from the way it's done in the outpatient surgery unit, notes Frew, but these differences should be addressed in departmental guidelines.

If a falls assessment is done differently in the ED than on an inpatient unit after a patient has been admitted, the ED's policy should not duplicate what's already in the existing hospital-wide policy, says Frew. "Go ahead and reference that policy, then distinguish why the ED policy is different," he says. "Make it clear it's intended to be different."

Otherwise, says Frew, if someone changes the hospital-wide policy at some point in time, they may not take into account the fact that the departmental policy says something different, or vice versa, and you can end up with an unintended inconsistency.

• EDs may lack a policy that other hospital areas have in place.

Bruce Wapen, MD, an emergency physician with Mills-Peninsula Emergency Medical Associates in Burlingame, CA, reviewed a case involving an ED patient who presented with low back pain after falling off a ladder, and sustained an intracranial bleed after falling off the X-ray table during the ED visit. The patient was not assessed for fall risk.

"It was noted on the requisition from the ED to radiology that he had fallen, but there was no specific policy in effect as to how to manage someone at risk for falling," says Wapen.

The question became whether the standard of care was breached and, if so, who breached it. At first, it was Wapen's opinion that the problem was in the radiology department, not the ED, but he then learned that although a policy for fall risk assessment was in place in the hospital's intensive care unit, it wasn't in place in either the ED or radiology.

"That opened the door for a real problem. It then became a disparity, which is unacceptable. You cannot segregate out patients in one area of the hospital as being protected by a policy that you don't have for people elsewhere in the hospital," says Wapen, explaining that the patient would have been qualified as being at high risk for falling if he had been assessed in the ED.

The hospital settled the case, in large part due to the lack of a fall assessment policy in its ED, he adds.

• ED staff may ignore existing policies.

While observing an ED's operations, Frew noticed an ED nurse doing something that was contrary to the ED's policy, and asked her why. "She responded that policies were written by stupid administrators and lawyers that knew nothing about EDs, so the nurses just put them in a drawer and ignored them," he says.

Some EPs feel similarly, adds Frew, and may argue that policies aren't always followed because there are clinical exceptions.

"I'm not disputing that, but the important thing is that policies and procedures are not suggestions. They are mandatory," says Frew. "There is an idea that somehow these rules are somehow optional. If they are not followed, there needs to be enforcement and discipline imposed."

In order for ED staff to follow policies and procedures, however, they need to be written in a logical, understandable manner. "It takes a long time to figure out what most policies and procedures mean in a courtroom," says Frew.


For more information, contact:

• Stephen A. Frew, JD, Loves Park, IL. Phone: (608) 658-5035. Fax: (815) 654-2162. E-mail: sfrew@medlaw.com.

• Andrew Garlisi, MD, MPH, MBA, VAQSF, University Hospitals Geauga Medical Center, Chardon, OH. Phone: (330) 656-9304. Fax: (330) 656-5901. E-mail: garlisi@adelphia.net.

• William J. Naber, MD, JD, CHC, Assistant Professor, Department of Emergency Medicine, University of Cincinnati. Phone: (513) 600-4749. E-mail: naberwj@ucmail.uc.edu.

• Bruce Wapen, MD, Foster City, CA. Phone: (650) 577-8635. Fax: (650) 577-0191. E-mail: Bdwapen@aol.com.