ED Attending: Liable for Bad Outcome, or Not?

Can the ED attending physician be held liable for a patient’s bad outcome even if he or she never saw the patient? In almost all cases, the answer is “yes,” at least to some degree, according to Kevin Klauer, DO, EJD, chief medical officer for Emergency Medicine Physicians in Canton, OH, and a member of the board of directors at Physicians Specialty Limited Risk Retention Group.

“The ED attending is responsible for all the patients in the ED, to one degree or another, especially if there is single coverage and you are the only physician there,” he says. “To say you are not responsible for any one of them just because you didn’t see them is unreasonable.”

Misconceptions about who is responsible “can lead to embarrassing and serious problems for ED physicians,” says Robert J. Conroy, JD, an attorney at Kern, Augustine, Conroy, & Schoppmann in Bridgewater, NJ. “Not only medical liability problems, but professional discipline issues can arise from these types of incidents.”

Liability for Residents

Months after a patient with a pneumothorax required a blood transfusion due to being given a blood thinner by a resident for suspected pulmonary embolism, Douglas Wheaton, MD, an attending physician in the ED at St. John Hospital and Medical Center in Detroit, MI, found himself involved in the hospital’s internal investigation of the case, even though he’d never seen the patient.

An ED nurse documenting in the EMR needed to enter an attending physician’s name for a chest X-ray that was ordered, and Wheaton was on duty in the ED at that point in time. “I found myself getting blamed for a complication for something that I never did, or would do,” he says. “They found that as the attending physician over the resident, it should have been my responsibility to go back and make sure everything was done correctly. If you’re there on duty, it’s your problem — even if you don’t know there is a problem.”

If the resident is a licensed physician, however, whether he or she is supervised by a chief resident or an attending, then that resident will probably end up standing alone if a lawsuit occurs, Klauer adds.

“Liability is probably not going to extend up to providers whose signatures and names are not on the chart, who haven’t established a physician-patient relationship,” he says.

Risks with Midlevels

Even if the ED’s guidelines state that midlevel providers can function autonomously and without direct supervision, the plaintiff’s attorney can still ask, “Who was in charge of the ED at the time?”

“If it was you, and they know that you could have taken a walk down that hallway to see that patient, and either by your policy or your choice you didn’t do so, there is nothing to stop them from naming you in a lawsuit,” says Klauer.

ED attendings should not assume that that they are insulated from liability just because they didn’t independently evaluate a patient seen by a midlevel provider, says Klauer. “This is a misconception, resulting in a false sense of confidence,” he adds.

Klauer says that in his experience, plaintiff attorneys typically name all potential defendants, including the EP and potentially individuals who signed a supervisory agreement for the physician’s assistant (PA) to work in the department. “We’ve occasionally had situations where the physician has gotten out of a case on a motion for summary judgment where the PA provided the care, and the EP signed the chart but never saw the patient,” reports Martin Ogle, MD, FACEP, vice president of CEP America, an Emeryville, CA-based provider of emergency department management and staffing solutions. “But that is happening less and less.”

ED policies stating that midlevel providers see certain patients without direct supervision “insulate you a bit,” according to Klauer. “But nonetheless, we run the ED. The attending physician is the captain of the ship,” he says. “You can’t claim authority and then abdicate your culpability later and say, ‘I’m in charge except for certain cases.’”

Bad Outcomes in Boarders

Wheaton says that with admitted ED patients, “the cases that aren’t immediately life-threatening but could become so, are the ones that are going to bite you.” These include septic patients and cardiac cases without acute changes on the EKG with an unrecognized ischemic process underway.

St. John Hospital and Medical Center’s ED implemented a process where admitted patients leave the ED as soon as the nurse gives the report, with other admitting services contacted if the admitting physician doesn’t call back quickly enough. “As soon as we can get the patient out of the ED, we do,” Wheaton says.

Even if an adverse outcome occurs well after the patient leaves the ED, however, the EP is still potentially liable, stresses Wheaton.

“Often, something bad happens right after the patient goes up to the floor, or within a period of time they are coding the person,” he says. “If there was an error made in the ED — something you did or something you didn’t do — liability is going to carry over.”

The ED attending also could be liable if he or she is the only physician available and fails to respond to a code if the admitted patient arrests after leaving the ED and being admitted to the floor, says Conroy.

“Similarly, where the ED attending knows, or should know, that the admitting physician may be delayed in arriving at the bedside, and there are matters that need to be followed-up immediately, the ED attending might also be liable,” he says. Here are strategies to reduce legal risks for attending physicians involving admitted patients held in the ED:

EPs should generally not write admission orders beyond a holding order.

“There is not a lot of case law on this, but there is certainly a lot of liability and exposure here,” says Klauer. “If you go beyond ‘Admit to Doctor X on telemetry, call upon arrival,’ and start writing orders for diet, medications, vital signs, and everything else, you have allowed the admitting physician to do something else instead of come and take care of their patient.”

By writing additional orders, explains Klauer, the EP has in essence assumed care of the patient on the floor with no intention of following the patient’s care after he or she leaves the ED.

“If something bad happens before that attending either calls in and gives orders or comes to see the patient, you are the only physician of record at that point involved in this patient’s care,” he says. “That puts you at great risk.”

Klauer says that writing a whole list of admission orders is not in the EP’s nor the patient’s best interest, as the EP is not planning on following-up on those orders, and is not actively managing the patient.

Instead, Klauer recommends writing a bridging order to “call for orders upon arrival,” with only the essential pieces of information needed to secure the bed — the diagnosis, the name of the physician admitting the patient, and what floor the patient is going to.

“As soon as they call for orders, you are no longer taking care of them. That is a clear transmission of responsibility,” he says, adding that ED nurses can take the orders, or the admitting physician can submit them into the EMR onsite or offsite.

EPs should be aware of requirements in hospital bylaws.

“There is no bright line between when our liability ends and when the admitting physician’s liability begins,” says Ogle. “It’s very much a gray area.”

The EP’s making a specific declaration in the medical record that care has been transferred to the admitting physician may help, Klauer says, but there is no guarantee that even this documentation will serve as protection from a lawsuit.

Hospital bylaws may require that a patient admitted from the ED be seen by the admitting physician within a specific timeframe, such as an hour or two if they are going to the intensive care unit (ICU), but the EP can still be named in the lawsuit even if the admitting physician doesn’t comply with this requirement, says Klauer.

“If the other physician didn’t see the patient, that can help the EP. But all it is going to do is add an additional defendant,” he says.

If the EP is the only one managing the patient’s care based on the orders written, and the patient stays in the ED waiting for the admitting physician to get to the beside, “something bad could happen and you were the last person to care for them. It puts you in a bad position,” explains Klauer.

The transition of care from ED attending to admitting physician must be clearly defined.

“You need a clear demarcation for where the outpatient management in the ED stops and the inpatient management begins,” says Klauer.

Catherine Ballard, JD, a partner and vice-chair of the Bricker & Eckler Health Care group in Columbus, OH, says that the point at which responsibility shifts from the EP to the admitting physician should be clearly set out in the hospital’s rules and regulations.

If EPs fail to follow the hospital’s policies and guidelines regarding this scenario, “you find yourself in a situation where you defined a standard of care based on your policies and rules, and you are not following it,” says Ogle. “That is a hard thing to overcome.”

Since the EP remains liable for the patient until there is a transfer of the patient to the admitting physician, says Ballard, there is a need for rules to define this process, including transfer orders and awareness of nursing staff of the patient’s arrival.

“There should be no gaps in coverage,” says Ballard. “To the extent gaps do exist, there is a potential that the EP, the admitting physician, and the hospital will all be held responsible for harm that the patient suffers as a result of the gap.”

If a bad outcome occurs and the patient sues, Klauer says one of the plaintiff attorney’s first questions is going to be, “Who was the physician in closest proximity in the ED?”

“It was the EP, and you are still going to have exposure. You can’t insulate yourself from liability just because the patient is admitted,” Klauer says. “If they are in the ED, they are an ED patient. That is the simplest rule to follow, and it will keep you out of trouble.”

Admitting physicians should be involved in the patient’s care as early as possible.

The EP’s risks are somewhat lessened if the admitting physician is rounding on the patient and writing orders for the patient, says Klauer. “If the admitting physician is involved and actively engaged in the patient’s care, it speaks to the transition of care,” he explains.

Klauer acknowledges, however, that it’s rare for the admitting physician to take active responsibility for the care of a patient being held in the ED, and even if they do, “the patient is still in the ED and there is still exposure for the EP.”

Klauer cautions against avoiding appropriate interventions in the ED for admitted patients simply to claim non-involvement. “Doing less just so you can say ‘I wasn’t involved,’ is not a defense,” he says.

If a bad outcome occurs after the patient leaves the ED, the plaintiff’s attorney will discover that the patient was starting to go in the wrong direction while in the ED, with no one managing their care, Klauer warns.

“I’m not saying you can manage every inpatient — you can’t. ICU patients belong in the ICU, not the ED,” says Klauer. “But to think you can mitigate that risk by saying ‘I’m just not involved because they’re not my patient’ is not a defense. That is a failed strategy for sure.”


For more information, contact:

  • Catherine Ballard, JD, Vice Chair, Health Care Group, Bricker & Eckler, Columbus, OH. Phone: (614) 227-8806. Fax: (614) 227-2390. E-mail: cballard@bricker.com.
  • Robert J. Conroy, JD, Kern, Augustine, Conroy, & Schoppmann, Bridgewater, NJ. Phone: (908) 704-8585. Fax: (908) 704-8899. E-mail: conroy@drlaw.com.
  • Kevin Klauer, DO, EJD, Chief Medical Officer, Emergency Medicine Physicians, Canton, OH. E-mail: kklauer@emp.com.
  • Martin Ogle, MD, FACEP, Vice President, CEP America, Emeryville, CA. Phone: (949) 461-5200. E-mail: MartinOgle@cep.com.
  • Douglas Wheaton, MD, Emergency Department, St. John Hospital and Medical Center, Detroit, MI. Phone: (313) 343-8797. E-mail: douglas.wheaton@stjohn.org.