Emergency Physician’s Testimony Could Legally Expose Hospital
By Stacey Kusterbeck
Emergency physicians (EPs) are facing many system issues that prevent them from providing quality patient care, which could result in malpractice claims.
For John Burton, MD, the extreme frustration of emergency providers is “unprecedented. I’ve been in emergency medicine for 30 years and I’ve never seen anything like it.”
Emergency medicine routinely deals with labor shortages, particularly among nurses. However, Burton says the issue is more pervasive and broader in scope. He says the underlying causes can be traced to the pandemic.
“Fear perched on our shoulders with each shift. Navigating these environments for three years has taken its toll on the workforce psyche,” says Burton, chair of the Carilion Clinic’s department of emergency medicine in Roanoke, VA.
Going into the pandemic, the last emotion most EPs expected to experience was anger.
“Yet anger was a very common feeling among healthcare workers moving into the second year of the pandemic and extending to now,” Burton reports.
ED providers’ frustration stemmed from wide-ranging issues with patients, policies, procedures, and more. “In some venues, this anger has oozed into the relationship between employed healthcare workers and the systems and organizations that employ them,” Burton adds.
What does all this anger and frustration mean? Burton predicts a rise in malpractice claims. Multiple ED therapies are time-dependent. Considering that even acutely ill and critical patients are waiting hours, some inevitably will miss treatment windows.
“Most of those missed treatment windows will swing delayed diagnosis allegations,” Burton says.
Plaintiff attorneys could allege delays in evaluation, imaging, and labs, all of which were beyond the control of the individual EP, caused the patient’s bad outcome.
There also is an intangible factor contributing to increased malpractice risk for EDs. Burned out, frustrated emergency providers are not as empathetic, compassionate, or apologetic as patients would like. Many ED patients are angry and fearful themselves.
“In sum, it’s a cauldron of emotions,” Burton says.
Many EPs are “just fed up” with hospital administration and system issues, according to Robert W. Derlet, MD. Derlet has served on hospital malpractice review committees, and served as an expert witness in multiple malpractice lawsuits.
“Hospital administration needs to pay attention to what’s going on in the ED — not just breeze through the department, but really spend time,” asserts Derlet, a professor emeritus of emergency medicine at UC Davis School of Medicine.
Derlet co-authored an editorial in which the authors suggested plaintiff attorneys sue hospital leaders in malpractice litigation for systems issues that contributed to bad outcomes in ED patients.1 “In the future, plaintiffs might point the finger at specific administrators, and paint a picture to the jury that those administrators had the purse strings to improve things, but were negligent,” Derlet suggests.
EP defendants frustrated with system issues might believe they have no choice but to turn on the hospital. “In the past, it was assumed that doctors had all the power in the hospital to correct wrongs and make change. In reality, only the hospital administrators and CEO now have that power,” Derlet argues.
Burton rejects the notion of using anger with management as a malpractice defense.
“This type of thinking, while understandable as an emotional reaction, is bad legal advice that will render no shelter for the defendant,” Burton cautions.
Airing grievances against the department, hospital, or health system will not serve the defendant in the long term, Burton says. If a patient experienced a delayed diagnosis because of long waits, some EPs might editorialize in the chart about why the delays happened or describe their personal efforts to bring the boarding crisis to the attention of leaders. A “just the facts” approach is better, Burton advises.
“Just state the time you saw the patient, and what happened, and when,” he suggests.
1. Derlet RW, Borden M. Facing malpractice suit? Sue the CEO and board. Emergency Medicine News 2023;45:5-6.
Airing grievances against the department, hospital, or health system will not serve the defendant in the long term. If a patient experienced a delayed diagnosis because of long waits, some providers might editorialize in the chart about why the delays happened or describe their personal efforts to bring the boarding crisis to the attention of leaders. A “just the facts” approach is better.
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