Is "the ED was just too crowded" ever a good defense?
Strategy is likely to backfire
Crowding is increasingly becoming a factor in litigation involving emergency department care, putting nurses and physicians at increased risk for being named in a lawsuit.
"I expect that there will be more lawsuits involving adverse outcomes in a crowded situation," says Robert Shesser, MD, professor and chair of the department of emergency medicine at George Washington University Medical Center in Washington, DC. "Because the hospital system is so broken, your exposure to medical legal risk goes up."
There is no question that patient outcomes are adversely affected by delays in assessment and treatment caused by ED overcrowding, according to Jeffrey Freeman, MD, clinical assistant professor in the department of emergency medicine at University of Michigan Health System in Ann Arbor.
"Overcrowding directly causes errors due to understaffing relative to workload," Freeman says. "It also causes patient dissatisfaction, which leads to increased perception of negligence if damages occur."
Also, long wait times increase the number of patients who leave prior to completing their emergency evaluation. This is a group of patients at high risk for bad outcomes, says Freeman.
When inpatients are boarded in the ED, significant and sometimes fatal delays can occur, warns Sandra Schneider, MD, professor of emergency medicine at University of Rochester in NY. Patients are often on complicated inpatient medical protocols that are unfamiliar to the ED nurses, which may lead to errors. "It is actually remarkable how rare those errors are it is a testament to the nurses who staff the ED," says Schneider.
Freeman points to an ominous sign: Attorneys are beginning to advertise for clients to call them if ED wait times are long, and are publishing articles about long ED wait times on their websites. "It is inevitable that overcrowding will lead directly to bad outcomes and increasing medical malpractice claims," he says.
Juries probably won't sympathize
Jurors are unlikely to look closely at the underlying issues involving ED crowding, and instead, are usually focused on the individual who is suing. "After Hurricane Katrina, we learned a lot about how the public views care in a disaster," says Schneider. "While the medical profession understood the decisions made, such as euthanasia during the disaster, the public clearly did not. If they don't understand that standard of care is compromised in a disaster, how would they understand it in a crowded ED even if we are in a disaster mode each and every day?"
There is nothing stopping a defense attorney from pointing out that a waiting room was flooded with critically ill patients, to explain why a patient's care was delayed. But would this get the ED physician off the hook, or make things worse?
"In my opinion, most juries would not consider overcrowding sympathetically," says Freeman. "They would likely blame the inefficiencies back on the doctor and the system for not correcting the problem before the event occurred despite the inability of either to make a significant impact in most cases."
Even if a particular nurse or physician was seen as sympathetic and not liable for a patient's adverse outcome because the ED was simply too crowded, this would likely be offset by the same jury placing an equal blame on the facility for not coping with the problem before the event, says Freeman.
"I wouldn't recommend that a defense attorney try this appeal. It reminds me of asking a judge to forgive a traffic violation because of icy road conditions," says Freeman. "Their response is inevitably that a driver is responsible for adjusting his operations to meet the conditions, even if they are outside of his control."
It may be true that the number of patients in your ED was a factor in the plaintiff's outcome, but it's not necessarily information you should share with a jury. "I'm not sure it is a good legal strategy to say, 'We saw 50 people that day and I can only see three at a time.' I think that hurts your case rather than helps it," says Frank Peacock, MD, vice chief of emergency medicine at The Cleveland (OH) Clinic Foundation. "I don't know anybody who has successfully used that as a defense."
What the jury will hear is that the ED doctor was too busy to do his job and that the patient paid for it. "You can say to the jury, 'I had three people dying at the same time and I had to make some decisions and this guy got a little bit ignored.' But I don't think you really want to admit that on the stand, even if it was a fact," says Peacock.
When you are faced with more patients than resources, one possible defense argument, which would encompass both the hospital and the emergency physician, is that everyone did everything that could be reasonably expected under bad circumstances. "In other words, there was more demand than supply," says Shesser. "But in the event that this defense doesn't prevail, the ED physician and their liability carrier might have to participate in settlements and judgments, for things that are really not their fault."
In fact, plaintiff's attorneys may themselves use the strategy of blaming errors on overcrowding, arguing that the state of the ED is evidence of lack of adequate care resources. When Peacock was sued by an ED patient, the plaintiff's attorney brought up the issue of crowding. "The best part was they didn't know what they were talking about. We pulled up the numbers and said 'It wasn't too busy, your patient was seen in six minutes,'" says Peacock. Still, the incident reflects the fact that crowding is coming up more often in ED lawsuits something that hospital administrators will ignore at their own peril.
"Hospitals become targets when they don't do their job. The idea that the ED can be ignored is going to get hospitals in trouble," says Peacock. "The ED has become the barometer for the health of the hospital. The longer ED patients wait, the higher the death rate for some kinds of patients and that means liability for a hospital."
Since it's impossible to recall if the ED was particularly crowded on a given day, Schneider suggests using electronic tracking systems, although this won't fully reflect staffing and space considerations, or stamping ED charts with a code signifying that the waiting room was crowded at that particular time. "However, in some institutions, all charts every day would be stamped!" says Schneider.
ED boarding adds to risk
When intensive care unit (ICU) patients are held in ED hallways, this poses a serious liability risk to ED physicians. "You, as the ED physician, have some liability to care for these tremendously ill patients," says Shesser. "And you are doing so in a unit that is not really designed for ICU patients. But when an adverse outcome occurs, the ED physician is going to get roped into the case."
Even though the ED physician has admitted the patient to another physician, that physician isn't physically present to see the patient. Because the patient doesn't leave the ED, the ED physician has some legal responsibility to keep monitoring the patient and to intervene as appropriate.
"To my mind, that is really the hospital's liability. The hospital should be indemnifying the ED physician group when they can't get patients to the ICU within a certain period of time," says Shesser. "But that is not happening, and it's a hidden cost to the ED physician not just a monetary cost, but an emotional cost if you are roped into a lawsuit."
More importantly, patients are put at risk because less than appropriate care is given in an ED hallway. "Even if the ICU physician comes down and rounds on the patient, the ED is not a substitute for an ICU," says Shesser. "And the ED nursing staff is having to worry about these critically ill patients, while still receiving patients by ambulance and so forth. I think it's a major problem and ED physicians should be very worried about it."
However, if ED physicians take an aggressive stance on this issue, they'd be at risk for losing their contact, since in most cases the hospital has the ability to fire its emergency group.
"I can see a situation where the insurance carrier for the emergency group would want to take a very aggressive stance toward the hospital. But the ED physician would be caught in the middle of not being able to go after the hospital legally, for fear of losing their contract," Shesser says. "I think it's a nightmare scenario for the emergency physician."
In addition, there are two immediate consequences of overcrowding related to the Emergency Medical Treatment and Labor Act (EMTALA), says Freeman. If a patient is triaged, but suffers delays in care due to overcrowding, then it is possible that the delays could constitute an EMTALA violation for not providing care sufficient to stabilize the patient.
In addition, EMTALA states the hospital must provide care "within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition."
"I don't believe that being overcrowded would fall under not having the staff and facilities available," says Freeman. "But there is increasing likelihood that the threat of EMTALA investigations will coerce hospitals into settling malpractice claims."
Sources
For more information, contact:
- Jeffrey Freeman, MD, Clinical Assistant Professor, Department of Emergency Medicine, University of Michigan Health System, Alfred Taubman Health Care Center, 1500 East Medical Center Drive, Room B1 354, Ann Arbor, MI 48109-0303. Phone: (734) 615-2765. Fax: (734) 936-9414. E-mail: [email protected]
- W. Frank Peacock, MD, The Cleveland Clinic Foundation, Department of Emergency Medicine, Desk E-19, 9500 Euclid Ave., Cleveland, OH 44195. Phone: (216) 445-4546. Fax: (216) 445-4552. E-mail: [email protected]
- Sandra Schneider, MD, Professor, Emergency Medicine, University of Rochester Medical Center, 601 Elmwood Ave., Room 2-1800, Rochester, NY. Phone: (585) 463-2970. E-mail: [email protected]
- Robert Shesser, MD, Professor and Chair, Department of Emergency Medicine George Washington University Medical Center, 2150 Pennsylvania Avenue Northwest, Washington, DC 20037. Phone: (202) 741-2911. E-mail: [email protected]
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