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Documenting Understaffing Could Sound Like Blame-Shifting to a Jury

By Stacey Kusterbeck

Many EPs are facing dangerously, chronically understaffed EDs. “Some EDs have cut staffing to reduce costs, raising concerns that patient safety is being jeopardized to increase corporate profits,” reports Peter McCool, MD, JD, an attorney at Washington, DC-based Stein Mitchell Beato & Missner.

EPs are concerned about their own legal exposure in this unsafe situation. “You may realize that because of the significant lack of nurses, techs, and ancillary staff, something got missed,” McCool says.

After dealing with the immediate patient care issue at hand, EPs reflect on the situation. Some conclude that under normal staffing levels, the mistake never would have happened. “EPs may attempt to shield themselves from liability by documenting that the ‘miss’ was due to critically insufficient staffing levels,” McCool says.

However, there are two problems with that, according to McCool. First, the ED provider is basically admitting a patient received substandard care in the department. For the purposes of establishing liability, it does not matter if the EP thinks that happened because of a nursing shortage. “Additionally, documentation on staffing shortages risks bringing the hospital into any potential lawsuit with an institutional negligence claim,” McCool says.

The plaintiff attorney could use the documentation to allege staffing levels were not reasonable at the time the patient was seen. “The plaintiff could use any of the numerous professional association’s guidelines regarding staffing of EDs as a guide for what should be considered ‘reasonable,’” McCool explains.

There are other unintended consequences. “Juries react negatively to notes that attempt to cast blame onto other departments, people, or the hospital. That rarely ends well. Notes like that generally doom the defense,” says Kenneth N. Rashbaum, JD, a partner at New York City-based Barton.

Emergency providers might believe documentation of understaffing provides legal protection. The problem with that is nursing shortages are not legal justification for falling below the standard of care. “Medicine is very much a team-based approach. A physician, in the eyes of the jury, is never going to be able to walk away from negligent care,” says Joshua E. Gajer, JD, an attorney at Philadelphia-based White and Williams.

In the eyes of most jurors, EPs are the “captain of the ship.” That means the EPs are responsible for the complete care of the patient, which includes care rendered by nurses and other advanced practice providers.

Some charts include statements such as: “I ordered a test, but due to nursing delay the results were not received in time to avoid harm to the patient.” The EP assumes the statement is going to get them off the hook. To the EP, it is proof to anyone later reading the chart the bad outcome was not their fault.

Plaintiff’s attorneys see it differently — as an admission the patient was, in fact, harmed by poor care. “At the EP’s deposition, the question is going to be: ‘So what did you do in response?’” Gajer says.

Documenting factually is a much better approach. If the EP made multiple requests for a nurse to draw blood, the EP can simply document the times of those requests. For example, the EP can document, “Requested blood draw at X time, Y time, and Z time. Blood drawn at Z time.”

That accurate, neutral documentation is enough to tell the story of what happened. “That is the best way to ensure your documentation is not going to be manipulated,” Gajer says.

At the deposition or trial, the defendant EP always can offer more information about the situation. “There’s an opportunity to put it into context. But the record is not a place to be an advocate,” Gajer stresses.

Long-winded rants about dangerous short-staffing are helpful only for plaintiffs. During litigation, those comments end up complicating the defense. “I’ve never seen comments like that benefit the defendant. I’ve seen it used very effectively to their detriment,” Gajer observes.

One problem is the EP comes off as overly defensive, covering their tracks by pointing out staffing problems. “When you have charting that looks like it’s written for the purposes of later litigation, it looks like you knew you screwed up,” Gajer says. “That can take what otherwise would be a run-of-the-mill negligence case, and drive up verdict value.”

Jurors are going to expect everyone in the ED is working together for the patient’s benefit. If the EP has valid safety concerns, the medical record is not the best place to voice those. Patient safety committees or the peer review process are better options, and generally are not discoverable during malpractice litigation. “That’s where you raise those concerns and try to get things to change favorably, not in the context of an individual patient’s medical record,” Gajer says.

Also, although the EP might suspect a bad outcome happened because of understaffing, it might not actually be the case. “You’ll have a provider making some assumptions based on why a particular thing may have happened,” Gajer says.

By the time people are deposed about the case, it is too late for the EP to take back a comment such as, “The nursing shortage clearly contributed to this person’s bad outcome.”

Even if that comment is true, the jury is not going to absolve the EP of liability. “You’re the doctor, and the buck stops with you,” Gajer says.

For example, the EP might chart, “Technically, this isn’t my patient. I was free, and the other EP was overloaded with patients at the time. I was just helping out because the department was short-staffed.”

“Nothing gets juries more angry than when they perceive a physician as abdicating responsibility,” Gajer says. “Anything that is perceived as a punt is unfavorable.”

Pointing the finger at the nursing shortage, says Gajer, “is the wrong mindset and will lead to bad legal outcomes.”

The plaintiff attorney can just read the EP’s statements about the horribly understaffed ED to the jury at trial. “Certainly, their experts can rely on it and testify affirmatively as a fact now — ‘Dr. X said this was the cause of the problem,’” Gajer says. “It’s hard for me to think of a circumstance where blaming someone else is ever going to inure to your benefit.” For the defense, it is some of the most damaging evidence there can be. “It is the best fodder for plaintiffs, who can use it in their opening statement, blow it up on a screen, and use it to great effect,” Gajer warns.

The best thing the EP can do is make it clear the focus is the patient. Instead of documenting all the issues where delays happened because the ED was understaffed, the EP would do better to focus on what was done to solve those problems. If there is malpractice litigation, plaintiff lawyers will find experts to give opinions on whether the standard of care was met. This will be considered independent of the staffing levels in the ED. “The defense will find experts to opine that you did everything you could, given the circumstances,” McCool says. “It will be for the jury to decide who is right.”