The Legal Standard of Care if ED Is Understaffed
By Stacey Kusterbeck
Dangerously low staffing levels could result in allegations the legal standard of care was not met.
“What we’d call non-traditional practices — the amount of boarding and overload, that you may not have a bed in your ED, that you are seeing patients in triage or straight out of the waiting room, that your ability to manage conditions like strokes and myocardial infarctions is being incredibly strained — that’s where we are going to get into issues,” says Alan Lembitz, MD, chief medical officer at COPIC, a Denver-based medical professional liability insurance provider
Frustrated emergency physicians (EPs) want to be sure the lack of nursing staff is duly noted in the mistaken belief such a note will change the legal standard of care to which they are held.
“Individual statements by emergency medicine providers is not a good idea,” Lembitz says.
That documentation is ammunition for plaintiff lawyers to use against the EP, and leaves the standard of care unchanged.
“As the treating EP, when you say you can’t meet the community standard of care because of these constraints, you are now an expert witness for the plaintiff. You didn’t want to sign up for that role, but you’ve just assumed it,” Lembitz says.
That is because documentation like this can be seen as an admission by the EP that he or she did not meet the standard of care. If a patient later files litigation, his or her attorney can hold up this information in court as evidence indicating ED providers, for whatever reason, failed the patient.
“We lose the standard of care argument, and somebody’s going to write the check, essentially,” Lembitz warns.
A better approach is for clinicians to make notes in ED charts that read more like a blanket statement, such as “We are in crisis standard of care relative to staffing shortages.”
“You are pointing to the entire system globally, not as an individual player, which is a different situation for the plaintiff to approach,” Lembitz explains.