A recent malpractice case involved a 38-year-old female with chest pain and low blood pressure who was held in the ED until an ICU bed became available.
“A CT of the chest revealed a moderate pericardial effusion. The patient had previously been hospitalized a month earlier for a small pericardial effusion,” says Jordan S. Powell, JD, an attorney at Levin & Perconti in Chicago.
The EP and the hospitalist who were going to take the case reviewed the CT result. Shortly thereafter, an ICU bed became available. Before the patient was transferred out of the ED, a new hospitalist took over in the ICU.
“There was never any communication between the ER physician and either hospitalist,” Powell says.
The claim has not yet been resolved and is set for trial at the end of the year.
“With adequate communication by the EP to the other physicians, and documentation of such communication, potential liability could have been avoided,” Powell notes.
Both hospitalists are taking the position that they do not see patients in the ED and are only responsible once the patient gets to the floor.
“The ER physician claims the hospitalist is responsible for providing the admitting orders,” Powell says. “As a result of this dispute and lack of communication, an initial set of admitting orders was never performed.”
There was no communication to the hospitalists that the pericardial effusion had increased from the previous month. The patient ultimately died of a cardiac tamponade.
“Since there is finger pointing between the EP and the hospitalists, the EP will not be dismissed,” Powell says. “The jury will be required to make the determination.”
Powell says these practices can be legally protective for EPs when admitted patients are boarded in the ED:
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Document all assessments, findings, and communication with other practitioners.
“Without documentation, it is difficult to remember any communications,” Powell notes. “At the time of a lawsuit or a deposition, there will be no proof that any such communication was had.”
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When patients are being held in the ED waiting for a bed to open, have a discussion with the admitting physician and develop a plan related to any orders.
“This fosters continuity of care,” Powell says. “It helps to reduce the risk that orders will not be properly followed.”
Who Is Responsible?
When claims against EPs involve admitted patients held in the ED, “the question becomes, on the back end, ‘Whose responsibility is it to provide care for that patient?’” says Brandon K. Stelly, corporate director of enterprise risk management, legal division, and internal counsel for the Lafayette, LA-based Schumacher Group.
Once a disposition has been made on a patient, and an admitting physician has accepted the patient into their care, the EP typically moves on to other patients, Stelly says. During the time the patient is in the ED, nursing staff are expected to monitor the patient and notify the nearest physician — likely, the EP — of any change in the patient’s condition or need that the patient may have.
“But who has the duty to that patient?” Stelly asks. “Cases show the answer to that question varies.”
Some courts have found the duty was with the EP because the patient was still physically in the ED, Stelly notes.
“But most likely, it would be the responsibility of both the EP and the admitting physician.”
If the attending physician has come to the ED and seen the patient, the responsibility is much more likely to fall with the attending physician instead of the EP, according to Stelly. This is not the case if the patient is admitted on paper, but the attending has not come to the ED and will not see that patient until the following day.
In this scenario, Stelly says, “I would strongly urge EPs to not take the mindset of that patient being the responsibility of the attending physician, at least while the patient is still physically in the ED.”
One malpractice claim Stelly reviewed involved a patient whose blood pressure changed significantly while he was held in the ED.
“According to the plaintiff’s attorney, it had changed to a point where it would have been an emergent finding,” he says. “The ED nurses were documenting it, but the EP was not advised of those blood pressures.”
The patient deteriorated before arriving on the inpatient floor.
“Even the nursing staff were of the mindset that the patient was admitted, and was therefore no longer under the care of the ED,” Stelly says.
The nurses failed to inform either the EP or the admitting physician of the patient’s blood pressure.
“It’s a fine line to walk when the patient is housed in the ED,” Stelly explains. “From the EP’s standpoint, it really is a double-edged sword.”
If the EP is notified of a change in the patient’s status and the EP takes action to correct it, via orders or any other intervention, it will be very hard for the EP to take the position that it wasn’t his or her patient anymore.
If a change in the patient’s status requires immediate intervention, Stelly advises, then the nursing staff should notify the closest physician — likely the EP.
“However, if the patient’s change in status is something that is not emergent, then I would suggest the nursing staff notify the admitting physician,” he says. “The problem lies within making the determination of which category the patient belongs.”
Stelly cautions EPs to “never ignore a notification from a nurse.”
“You may have moved on to the next patient, or the next four patients,” he says. “But when the nurse taps you on the shoulder and says, ‘We’ve got a problem,’ you need to take action.”
The EP must also document the subsequent action.
“Just as I advise my EPs to document well, I’m quite sure nurses are also documenting well and will document that the EP was informed,” he says. “The question then boils down to, ‘What did the EP do with it?’”
The EP should also notify, advise, and consult with the admitting physician and document those interactions, Stelly urges.
“That will allow the EP to say, ‘I took the appropriate action that was needed, and I did so with the involvement of the attending physician under whose care the patient belonged,’” he says.
EPs Can’t ‘Wash Hands’ of Patient
When malpractice claims involve an ED patient who was boarded, allegations against EPs can include failure to stabilize the patient, failure to monitor and manage a decompensating patient, and failure to appropriately admit or transfer the patient to an inpatient care location, says Nathaniel Schlicher, MD, JD, FACEP, associate director of the Patient Safety Organization at TeamHealth. Schlicher is also attorney of counsel in the Seattle office of Johnson, Graffe, Keay, Moniz & Wick.
“Providers can get in trouble when they believe they have transferred care and thus can ‘wash their hands’ of the patient regardless of their condition and location,” Schlicher warns.
Without clear delineation of the timeline of the transfer of care and when responsibility shifts to the inpatient service, there is a risk the EP can get swept into a malpractice case.
“From the public’s perspective, the ED doc that is 10 feet away is still responsible when the patient is declining — even if they have been admitted for four hours to a provider that has never seen them,” Schlicher stresses.
Schlicher recommends EPs work with hospitalists and administrators to clearly delineate responsibility for boarding patients, timelines for when the transition of care occurs, and who is writing the orders. In some institutions, EPs write admission or transition orders that can last up to 24 to 48 hours.
“These extend the provider’s risk and liability far beyond the initial care and stabilization,” Schlicher says. “It is important to limit the duration and also ensure the inpatient provider is assuming care in a timely manner.”
During malpractice litigation, inpatient providers frequently claim the ED failed to communicate an important fact that would have changed their evaluation or timeliness of care.
“This is the reality in almost all cases involving transition of care,” Schlicher says. “Thus, it is important the ED providers clearly document what information was communicated.”
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Jordan S. Powell, JD, Levin & Perconti, Chicago. Phone: (312) 516-1128. Fax: (312) 332-3112. E-mail: [email protected].
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Nathaniel Schlicher, MD, JD, FACEP, Associate Director, TeamHealth Patient Safety Organization, Knoxville, TN. E-mail: [email protected].
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Brandon K. Stelly, Corporate Director of Enterprise Risk Management Legal Division & Internal Counsel, Schumacher Group, Lafayette, LA. Phone: (337) 354-1129. Fax: (337) 262-9716. E-mail: [email protected].
