Bad Outcome in Waiting Room? Defense Is Difficult

Jury won't want to hear about crowding

Jurors might be able to understand the fact that patients can't always be treated immediately in a busy ED, particularly if a plaintiff didn't have obviously life-threatening symptoms at the time.

"What doesn't play well with a jury is someone is left out in the waiting room to deteriorate and no one's even noticing," says John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland. He points to a recent high-profile case involving a patient collapsing and dying in an ED waiting room, which was quickly settled.

"Obviously, that is an egregious case, but it is something the public does not want to see," he says. The public perception is that people are sometimes left out in the ED for unreasonable periods of time, explains Tafuri, so juries won't be sympathetic if they perceive that somebody was ill and not attended to.

"What is helpful in a lot of EDs if someone is not immediately evaluated, is that someone does a repeat assessment or sometimes repeat vital signs, every 15 or 30 minutes," says Tafuri. "Certainly, that will mitigate the fact that there was a delay in care."

Having a policy for reassessment, though, is a "double-edged sword," says Tafuri. "If you think you can comply with the policy, it's probably good because it can be brought in as evidence that you are being proactive."

On the other hand, a policy can be very detrimental to the ED's defense if it wasn't complied with and a bad outcome occurs. "What better thing to show to a jury that you didn't meet a standard of care, than saying, 'Look at this, this is not my expert talking. This is their own policy, and they didn't live up to it,'" he says.

Inadequate staffing is becoming more of a problem, says Tafuri, due to the financial pressures hospitals are under. "In the past, we always had excess staff. Now that we're living closer to the edge, if it is a weekend night or there are not enough people, patients are placed at risk," he says.

Tafuri says that having a critical care float pool of nurses to help when the ED is short-staffed can reduce legal risks. "The reality, though, is that although it may be a little bit more efficient than having a well-staffed ED, it still costs money," he says. "A lot of hospitals are reticent to have any person around who is not being utilized, because of the cost pressures."

The jury isn't likely to be sympathetic to an EP named in a lawsuit if he or she makes the excuse that the ED was short-staffed and overcrowded, adds Tafuri. "When you end up in a legal situation, they are only focused on one person — the plaintiff," he says. "They don't want to hear about all the other patients you were treating, or that you didn't have enough nurses."

The jury will want to know why you didn't treat the plaintiff in an expeditious way, says Tafuri, adding that he has seen successful defenses for delays in care that occurred during a well-publicized mass casualty incident.

Another possible defense is when the patient's presenting complaints are clearly unrelated to the eventual diagnosis. "But even then, there is no guarantee of what a jury may perceive as a legitimate delay," says Tafuri. "What may be perfectly reasonable and understandable to a physician or nurse may fall short in a juror's eyes."


For more information, contact:

• John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. Fax: (440) 835-3412. E-mail: