Legal Considerations if ED Embraces Provider in Triage Approach
By Stacey Kusterbeck
Some EDs are adding providers at triage to improve care quality and patient flow. However, the practice remains somewhat controversial in terms of potential liability exposure. “If physicians are at triage, this means that the physicians are taking on additional liability exposure,” argues Susan Martin, Esq., executive vice president of litigation management and loss control at AMS Management Group, a medical professional liability insurer.
Typically, malpractice claims against emergency physicians (EPs) allege a missed diagnosis or treatment delay. Sometimes, plaintiffs allege a delay or mistake at triage contributed to a bad outcome. If so, it means the hospital could be liable, since nursing staff are hospital employees.
“Hospitals continue to push more risk out to the physician staff,” Martin warns. “If the hospital is requesting physicians to triage, that is exactly what is happening.”
Martin says implementing standing orders at triage and taking a team approach to care, with triage nurses, nurse practitioners, physician assistants, and EPs all working together, are better approaches to improve the triage process. “Further, physicians at triage will not expedite patient care,” Martin asserts.
After triage, many ED patients spend hours waiting for an exam room to open or for an X-ray result. “None of those delays will change with a physician at triage,” Martin offers.
Martin says that while using the provider in triage model in a mass casualty incident or in the field is appropriate, it does not make sense in a controlled environment, such as the ED. “It is a waste of physician resources. With good communications between the triage nurse and ED physician staff, it is unnecessary,” Martin argues.
Another legal consideration for EPs is the establishment of a patient/physician relationship, which constitutes the duty of care, one of the necessary legal elements that must be proven in malpractice cases.
“A patient/physician relationship begins with contact, whether the EP answers a question or the EP examines the patient,” Martin explains.
If the EP is at triage, the patient/physician relationship might be established hours earlier than it otherwise would have been. If asked to work triage, ED physician groups can seek local counsel to advise them, or ask for an opinion from their professional liability carrier.
Daniel LaLonde, MD, FACEP, says that in his experience, the provider in triage model poses some additional liability risks for EPs — and alleviates others.
“On the positive side, you get eyes on a patient, as opposed to someone languishing in the waiting room who never even gets seen by a clinician. In some ways, that’s more dangerous than anything in terms of the risk you are taking on,” says LaLonde, medical director of emergency services at Ascension Providence Hospital - Southfield (MI) Campus.
Under the traditional triage model, a patient might present to one ED, then leave after a long wait without seeing a clinician. That patient could end up going to another ED and experience a bad outcome, which could have been prevented if an EP at the first ED had provided an exam. If the patient filed a lawsuit, the claim likely would name multiple EPs and staff who were listed as working in the ED at that time.
In LaLonde’s view, a physician in triage serves a different role and purpose than a triage nurse, as the physician has attained a level of experience that helps guide their history-taking and physical exam. This helps put the whole case together.
“That is certainly no slight against our triage nurses, who are triaging as many people as they can to determine which are the sick ones and which can potentially wait a bit longer,” LaLonde says.
In many cases, the physician can order specific tests and even discharge lower-acuity patients who do not even need a bed. However, in some cases, the physician at triage identifies a life-threatening emergency that otherwise might have returned to the waiting room.
For example, a chest pain patient has undergone an ECG that shows no concern for ST-elevation myocardial infarction. But the EP at triage might learn the chest pain radiates to the back with uncontrolled hypertension, the patient has been on stimulants, or that the patient is living with a connective tissue disorder, raising suspicion for aortic dissection.
From a risk perspective, LaLonde says it is not ideal that physicians in triage are trying to move as fast as possible while asking some preliminary questions; conducting brief, focused exams; and putting in orders to start the workup in the front of the ED — then moving as quickly and safely as possible to the next patient.
“The stress and fatigue of doing that can burn you out on a long shift, over a period,” LaLonde cautions. “There’s also risk of medical error.”
Good communication with EPs in the back of the ED can mitigate risk for the physician in triage. In some cases, the physician in triage starts the workup for a patient who requires further management and investigation, then hands off the patient to colleagues in the back of the ED. Many of those patients might be placed back in the waiting room or moved to a rapid treatment area (if the ED operates one) after he or she sees the physician in triage.
“You are really trying to concentrate on the most life-threatening, life-altering things that are occurring with the patient, and then moving onto the next patient,” LaLonde explains.
Ideally, leaders set an expectation for the EPs in the back to review the note of the physician in triage in full before seeing the patient. In some cases, the physician in triage calls the EP in the back for a brief conversation to express specific concerns about the patient.
Once the patient goes back for evaluation, the EP explains to the patient he or she read the notes of the physician in triage, and indicate the workup is underway. This conveys to the patient the two EPs are working together.
“The best model is for the physician at triage to move quickly in a focused manner, then hand the patients to EPs in the back, or discharge patients from the front,” LaLonde says. “Good communication is key.”
Good documentation also can mitigate legal risks for EPs at triage. LaLonde says that, ideally, physicians in triage should be clear on the limited role they played in the patient’s care. Charting should reflect the fact the EP was focused on the most life-threatening, life-altering issues that could be occurring. For instance, the EP might document,
“This was a physician in triage-focused exam, and the history of present illness was pain. Workup was initiated. Patient appears to be medically stable at this time and is awaiting further investigation.”
A provider in triage can improve patient care by identifying subtly ill patients earlier in their stay, either through direct evaluation in triage or by starting their workup earlier, according to Jonnathan Busko, MD, MPH, FACEP, an EP and ED medical director at St. Joseph Hospital in Bangor, ME.
“Properly organized and with good support and policies, there is little additional risk to the physician who initially sees one of these patients,” Busko asserts.
However, without a clear, explicit understanding of the role of the provider in triage, and good processes and procedures to support the clinician, there are risks of liability exposure. Except for cases during which the patient’s evaluation can be completed in triage and the patient can be discharged, good communication with patients about the role of physician in triage is critical.
“It is important to explain, both in documentation and in discussions with the patient, that the physician in triage evaluation is not the comprehensive medical screening exam, and that it is not yet possible, at the end of the physician in triage encounter, to state whether or not an emergency medical condition exists,” Busko explains.
Provider in triage programs can improve patient flow and safety, but are not necessarily a panacea for ED crowding, says Brian J. Franklin, MD, MBA, who led a study on this topic several years ago.1
“Initiating diagnostic workups at triage does not, by itself, guarantee decreased ED length of stay,” says Franklin, an emergency medicine resident physician at Stanford Medicine.
For example, if an admitted patient is boarded in the ED because no inpatient bed is available, receiving that patient’s test results minutes to hours earlier would not change their ED exit time. “Provider in triage programs are often reported to reduce left-without-being-seen rates. They may also provide enhanced visibility into waiting room patients, guarding against patient deterioration,” Franklin says.
However, those results partly depend on ED-specific factors. Admission rates, boarding frequency, availability of fast-track services for low-acuity patients, and resources to fulfill lab and imaging orders placed at triage in a timely manner — all these come into play. “If many of your patients are admitted and many of them board, physician in triage may not meaningfully reduce the amount of time those patients spend in the ED,” Franklin says.
1. Franklin BJ, Li KY, Somand DM, et al. Emergency department provider in triage: Assessing site-specific rationale, operational feasibility, and financial impact. J Am Coll Emerg Physicians Open 2021;2:e12450.
Implementing standing orders at triage and taking a team approach to care, with triage nurses, nurse practitioners, physician assistants, and emergency physicians all working together, are better approaches to improve the triage process.
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