Lawsuits may arise from ED 'boarding' practice
An emergency physician is managing an acute myocardial infarction, arranging for a patient transfer, sewing up a laceration, and putting in a chest tube, with 20 people still waiting to be seen in the waiting room. This is probably not the best person to provide routine inpatient care for multiple patients being held in the ED, says William Sullivan, DO, director of emergency services at St. Mary's Hospital in Streator, IL.
"Chances are that it's been a while since an emergency physician has ordered a colon preparation prior to a patient's colonoscopy or done an in-depth work-up to determine the cause of a patient's anemia," Sullivan says. "Those just aren't things we routinely do. Having admitting physicians handle admitted patients is better for patient care."
Holding admitted patients in EDs always was known to be bad for patient flow, but there is a growing body of research showing that it also harms patients.1-4 There's no question that the risk of a poor outcome increases when patients board for long periods, particularly when those patients are critically ill, according to Jesse M. Pines, MD, MBA, MSCE, assistant professor of emergency medicine and epidemiology at the Hospital of the University of Pennsylvania in Philadelphia. "In many hospitals, it is the ED physicians and nurses caring for these boarders, so the risk falls squarely with them," Pines says. "It may be impossible to avoid getting roped into lawsuits if there is an error attributed to boarding."
When a bad outcome does occur, attorneys will scour the chart to see what happened while the patient was boarding. "This is especially true now that there is clear evidence that boarding is hurting people," he says.
ED leadership must be patient advocates, says Robert Broida, MD, FACEP, chief operating officer of Physicians Specialty Limited Risk Retention Group, the professional liability insurer for Canton, OH-based Emergency Medicine Physicians. His recommendations:
- Consistently and respectfully remind administration and medical staff leadership of the responsibility of the hospital, and ultimately the hospital board, to ensure reliable, quality care under its roof.
- Provide hospital leadership with the report on boarding from the American College of Emergency Physicians' (ACEP) Task Force, Emergency Department Crowding: High-Impact Solutions. (Editor's note: To access the report, go to www.acep.org. Under "Practice Resources," click on "Practice Resources," and under "Issues by Category," click on "Boarding and Crowding." Scroll down to "2008 Boarding Task Force Report.")
- Use examples, especially near-misses, from your own hospital to emphasize the risks involved.
References
- Chalfin DB, Trzeciak S, Likourezos A, et al. Impact of delayed transfer of critically ill patients from the emergency department to the intensive care unit. Crit Care Med 2007; 35:1,477-1,483.
- Liu SW, Thomas SH, Gordon JA, et al. Frequency of adverse events and errors among patients boarding in the emergency department. Acad Emerg Med 2005; 12:49-50.
- Pines JM, Hollander JE. Association between cardiovascular complications and ED crowding. Presented at the American College of Emergency Physicians 2007 Scientific Assembly. Seattle; October 2007.
- Richardson DB. Increase in patient mortality at 10 days associated with emergency department overcrowding. Med J Aust 2006; 184:213-216.
Crowding from boarding can harm patients
There is a significant amount of research that demonstrates ED crowding due to boarding is responsible for poor outcomes, says Tom Scaletta, MD, president of Emergency Excellence, a Chicago-based organization that improves patient care and efficiency in the ED while controlling costs. He also is medical director of a high-volume community hospital in a Chicago suburb.
Most lawsuits will involve delayed diagnoses in time-sensitive problems such as myocardial infarction, ischemic stroke, peripheral vascular disease/ischemia, intracranial bleeding, and hemorrhagic shock, Scaletta says.
In the event of a lawsuit, Scaletta recommends showing the jury a log of patients seen that day, with names redacted, and the number of ED physicians and midlevel providers that were working. "There are published statements published by professional societies that dictate reasonable staffing levels," he says. For instance, of the American Academy of Emergency Medicine says the rate of patient influx should not exceed 2.5 patients per physician per hour on average. (Editor's note: To access this position statement, go to www.aaem.org. Click on "AAEM Position Statements," and scroll down to "Position Statement on Physician-to-Patient ED Staffing Ratios" and "Position Statement on Nurse-to-Patient ED Staffing Ratios.")
Scaletta believes this is safely increased by 50% (to 3.75) when a physician works as a team with a midlevel provider. "Emergency physicians need to have due process so that they can speak up about problems like understaffing and not get fired, which has happened," he adds. Your documentation needs to be "factual and not accusatory," says Scaletta. "I also think emergency physicians need to be aware of the waiting room load and call in reinforcements when the number/acuity is high," he says. "Hospitals need to have a crowding action plan, akin to internal disaster activation."
Board patients on floors instead
For legal damages to result, a patient's long wait in an ED hallway has to be tied to some consequence, notes Peter Viccellio, MD, FACEP, vice chairman of the Department of Emergency Medicine at State University of New York at Stony Brook.
But what about the possibility of a jury being inflamed to hear that a patient was waiting for 20 hours in the hallway of an ED? "It should anger them, but the anger is misdirected. It's not the physician taking care of the patient, it's the fault of the system," says Viccellio. "But part of the problem is throwing our hands in the air and say we can't do any better, which is not true. We really cannot accept this terrible care that is provided as part of the status quo."
If the ED is "filled to the gills" with patients, and you now have 20 additional patients to distribute, the logical answer is to put two of those patients on each unit. "But what's the current answer in many hospitals? To put all 20 in one place," says Viccellio.
He points to his own institution's practice, which sends the admitted patients to board on floor hallways when the ED is at full capacity. "It has dramatically enhanced the care of our patients. This is far more important than the consequence of that: decreasing our liability," says Viccellio. "And in terms of putting patients on the floors, we have done an exhaustive search for patient safety issues, and we can't find any."
What most institutions are asking their EDs to do is care for all the patients that come in, and staffing for those patients, but in effect, saying, 'By the way, you may have an extra 30 admitted patients that you have to care for,' says Viccellio. "What we are asking of the inpatient units is that, during times of high capacity, a nursing unit that takes care of 30 patients will care for 31 or 32," he says. "Patients are much more comfortable upstairs than downstairs. And they don't stay in the hallway for long, because magically a bed opens up once they're up there."
Anyone on a jury has likely gone to an ED and waited for hours to be seen, notes Viccellio. "And to most of them, it's not apparent why," he says. "I think there is a very legitimate moral and legal question we need to ask: Does the fact that 'that's the way things are,' make them OK? I don't think you can fault somebody if it costs $100 million to do something. But if you can just change the way people work, at little to no cost, and it has a profound impact on the patient, why not do it?"
Could giving 'unequal' care to inpatients get you sued?
Admitted patients held in EDs are required by The Joint Commission to receive the same level of care as they would get on inpatient units. A jury hearing about a patient's bad outcome would presumably expect this as well. But what if this level of care is just not realistic for an understaffed, overcrowded ED?
It would be difficult for a plaintiff's lawyer to prove that the care provided during the time the patient spent boarding in the ED was inferior across the board, according to Jesse M. Pines, MD, MBA, MSCE, assistant professor of emergency medicine and epidemiology at the Hospital of the University of Pennsylvania in Philadelphia. However, if a medical error occurs while a patient is boarding, attorneys might look to how the hospital systematically treats boarders, says Pines. For example, if a medication error occurs while a patient is boarding and the order entry system is different in the ED and on hospital floors, attorneys might focus on the difference.
Despite The Joint Commission requirements, many hospitals lack policies to ensure that boarders receive the same level of care, such as having inpatient physicians care for their own patients in the ED. "The problem is that most hospitals still require emergency nurses to care for the admitted patients," says Pines. "This can put both the boarders themselves and the other patients waiting to be seen at risk."
Also, even when inpatient physicians care for boarders, emergency physicians still have the ultimate responsibility for patients who are physically in the ED. "From both a patient safety and legal perspective, this is high risk," says Pines. "If a patient becomes unstable and emergency physicians need to step in to care for a critically ill patient who has been admitted for hours, lawyers may place the blame on emergency physicians for what was really an inpatient complication."
Boarding is dangerous, and the care patients receive while boarding is inferior in many hospitals, sources say. "When adverse boarding outcomes do occur, lawyers will point directly to the evidence in the literature and use it against hospitals and emergency physicians," says Pines. "Unless something is done by The Joint Commission to step in and prohibit hospitals from the practice of boarding, this problem is only going to get worse."
Inpatient care should be the same wherever the patient is located in the hospital, says Robert Broida, MD, FACEP, chief operating office of Physicians Specialty Limited, Risk Retention Group in Canton, OH. "Patients on a gurney in the ED hallway do not receive the same care as those on the inpatient unit," Broida says. "To the extent that the patient is harmed by this, the hospital is at risk."
A plaintiff's attorney also could point to differences in policy. Peter Viccellio, MD, FACEP, vice chairman of the Department of Emergency Medicine at the State University of New York at Stony Brook, says, "Hospitals like to write volumes and volumes of policy. And in the setting of boarding, these policies become impossible to comply with. Also, as the staff are stretched thinner and thinner, documentation suffers. So adequate care might be delivered, but not documented."
If a jury hears that a patient didn't get the same care he or she would have on the inpatient floor, they are likely to blame the ED physician being sued, says Viccellio. "We don't have time to document what we do, and the context in a courtroom doesn't take into account what was going on with others," he says. "Juries are not sympathetic to 'the ED was too crowded.'"
For nurses, it's 'unrealistic'
With staffing levels cut to the bare minimum, it is unrealistic to expect the ED nurses to provide comprehensive "floor nursing" care to boarders on top of their already large ED patient load, notes Broida. "The first priority for ED nurses are the ED patients," he says. "Admitted patients boarded in the ED hallway may experience medication errors, delays in proper admission assessment, lack of privacy, increased risk of falling and other potential problems."
The burden of holding patients in EDs is mostly on nursing, says Viccellio. "It's not a matter of 'do you feel like it's easy or difficult?' but 'do you think it's doable?" he says. "Nurses feel like they are failures because they can't do what they need to do. If you have an ED nurse taking care of six admissions plus eight active ED patients, it's not a mathematically doable job."
It is not possible for emergency nurses to deliver the care that admitted patients require for two reasons, says Tom Scaletta, MD, president of Emergency Excellence, a Chicago-based organization that improves patient care and efficiency in the ED while controlling costs. Scaletta also is medical director of a high-volume community hospital in a Chicago suburb. "First, they are not floor nurses and definitely not specialty floor nurses," he says. Second, emergency nurses have a full waiting room to address, he says. "Waiting patients need to be screened for life threats and stabilized," he says. "This is always a priority over most floor cases."
There is a significant liability risk if ED staff members are not providing the same level of care, expertise, and documentation as inpatient staff, according to Broida. "It would be difficult to convince a jury that the patient on a gurney in the ED hallway receives the same care as those on the inpatient unit," he says.
Broida says once a patient is admitted, the care should be provided by the inpatient staff, not the ED staff. Hospitals should float an inpatient nurse down to the ED to care for the boarders or place the boarder in the inpatient unit hallway to await a bed.
Some hospitals have "admission nurses" come down to the ED for patient intake, while others send ICU or floor nurses down to the ED to care for boarded inpatients. "In either scenario, the patient will receive 'typical' inpatient care from a designated inpatient nurse," says Broida. "Also, the ED nurses will not be diverted to care for inpatients and will be able to concentrate on their required ED duties."
An emergency physician is managing an acute myocardial infarction, arranging for a patient transfer, sewing up a laceration, and putting in a chest tube, with 20 people still waiting to be seen in the waiting room.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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